Opinion
Case No. 2:01-CV-0059
June 11, 2002
OPINION AND ORDER
This matter is before the Court for consideration of Plaintiffs' request for attorneys' fees and costs. For the reasons that follow, the Plaintiffs' request is granted in part.
I.
Plaintiffs filed this action on January 22, 2001 claiming trademark infringement, cybersquatting, trademark dilution, unfair competition and false designation of origin, under 15 U.S.C. § 1051, et seq., against Defendant Victoria Zdrok, who operates an adult-oriented Internet web business under the names "Victoria's Secret Desires" and "Planet Victoria." On April 4, 2001, the Clerk issued an Entry of Default against Defendant. On April 11, 2001, this Court entered Default Judgment in favor of Plaintiffs. The Order accompanying the Default Judgment directs the Defendant to, inter alia, pay statutory damages to Plaintiffs on Count II of their complaint (cybersquatting in violation of the Lanham Act) in the amount of $100,000.00 as well as prejudgment and postjudgment interest. The Court indicated in the Order that the amount of attorneys fees and costs, as well as the amount of damages on Counts I, III and IV of Plaintiffs' complaint would be determined at a hearing.
A hearing on damages for Counts I, III and IV was scheduled to take place in May 2001 but was vacated upon Plaintiffs' motion. Plaintiffs moved to conditionally withdraw their right to damages pending the outcome of a case which the Defendant filed on May 4, 2001 against Plaintiffs in the United States District Court for the Central District of California. In the action, the Defendant herein sought to set aside this Court's entry of Default Judgment under Rule 60(b). Plaintiffs represented that, in the event they were successful in the California action, they would forego an award of damages on Counts I, III and IV in this action. This Court directed Plaintiffs to keep the Court advised of the status of the California action as well as the fees incurred in connection with the instant case.
On August 10, 2001, Plaintiffs advised this Court that, on July 30, 2001, the California federal court dismissed the complaint of Defendant Victoria Zdrok, under Fed.R.Civ.P. 12(b)(6). (Doc. #20). The California court concluded that it was without jurisdiction to entertain Defendant Zdrok's Rule 60(b) request.
In light of the California decision, Plaintiffs herein seek to finalize their request for attorneys fees and costs associated with pursuit of the instant action and defense of the California action.
II.
The primary concern in considering a motion for attorneys' fees is that the award be reasonable. In other words, an award should adequately compensate counsel yet avoid producing a windfall to the lawyer. Adcock-Ladd v. Sec. of Treasury, 227 F.3d 343, 349 (6th Cir. 2000) (citations omitted). In assessing the reasonableness of the fees, the Court should first ascertain counsel's lodestar, i.e., the proven number of hours reasonably expended multiplied by the attorney's reasonable hourly rate. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). The Court may adjust the lodestar "to reflect relevant considerations peculiar to the subject litigation." 227 F.3d at 349. The factors the Court may consider in this regard are:
(1) the time and labor required by a given case; (2) the novelty and difficulty of the questions presented; (3) the skill needed to perform the legal service properly; (4) the preclusion of employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the `undesirability' of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases.
Reed v. Rhodes, 179 F.3d 453, 471-72 n. 3 (6th Cir. 1999), citing Johnson v. Georgia Hwy. Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974).
While there is a "strong presumption" that a prevailing lawyer is entitled to his lodestar fee, see Pennsylvania v. Delaware Valley Citizens Council for Clean Air, 478 U.S. 546, 564 (1986), a court may adjust a fee request upward or downward. Hensley, 461 U.S. at 434. Further, a request for attorneys' fees may be considered without conducting an evidentiary hearing. Building Service Local 47 Cleaning Contractors Pension Plan v. Grandview Raceway, 46 F.3d 1392, 1402 (6th Cir. 1995). A hearing is required only when the court cannot fairly decide the issue on the basis of affidavits and documentation in the record. Id.
III.
In this case, counsel for Plaintiffs have submitted two affidavits in support of their request for an award of attorneys' fees and costs.
John Landolfi, Esq. of the Columbus firm of Vorys, Sater, Seymour and Pease, LLP, who is trial counsel in this case, avers that he and other associates in his firm generated a total of $16,290.25 in attorneys' fees in this case. Landolfi's hourly rate is $270.00; his associates bill at the rates of $230.00; $175.00; $145.00; $125.00; and $105.00 per hour. Landolfi has provided detailed statements of the work performed in connection with the fees generated. In addition to costs incurred with this action, the Vorys firm seeks a total award of $17,727.05 for their representation of Plaintiffs.
Robert W. Zelnick, Esq., a partner at the Washington, D.C. firm of McDermott, Will and Emery, also submits an affidavit in support of his firm's request for fees and costs for representing Plaintiffs in this case as well as in the California action. The Court observes at the outset that the McDermott, Will, Emery firm has not provided an itemized statement of work performed; rather, Zelnick categorizes the types of work performed by each attorney at the firm on this case and on the California action.
Zelnick avers that the firm has a top-tier, nationally recognized intellectual property practice. (Zelnick Affidavit at ¶ 16).
Zelnick billed 12.25 hours to Plaintiffs at an hourly rate of $415.00. (Affidavit of Robert W. Zelnick, Esq. at ¶ 3). Zelnick avers that he assisted in preparing the Complaint; preparing a response to Defendant's request to proceed without counsel; and preparing Plaintiffs' Request for Entry of Default and Motion for Default Judgment. (Id.). Zelnick also performed work associated with the California action; in particular, preparing the Motion to Dismiss, the Reply in support of the motion, as well as attending an oral argument and various settlement negotiations in California. (Id.).
The McDermott, Will, Emery firm also engaged the services of two other partners in connection with the filings in this case and the California action. Melise Blakeslee, Esq. billed 3 hours at a rate of $425 per hour in connection with the filing of the complaint in this case and 39.75 hours at a rate of $455 per hour in connection with other filings in this case and the California action. Robert Rotstein, Esq. billed a total of 15 hours at a rate of $470 per hour in connection with the California action.
In addition, two associates at the McDermott, Will, Emery firm also contributed to this case and the California action. Carrie A. Shufflebarger, Esq. billed a total of 174.75 hours at a rate of $240.00 per hour. Lisa Stone, Esq. billed a total of 17.5 hours at a rate of $260.00 per hour. Finally, a non-attorney professional at the firm billed 5.75 hours at a rate of $195.00 in connection with assembly of exhibits, filing of documents, and maintaining pleadings and correspondence files.
According to Zelnick, the firm generated a total of $131,906.25 in attorneys' fees in connection with their representation of Plaintiffs. The firm also incurred a total of $7,352.28 in costs associated with computer research, telephone charges, copy fees, postage, and travel expenses for representation of Plaintiffs. The McDermott, Will, Emery firm seeks a total of $139,258.53 as an award.
IV.
This Court finds the affidavit of John Landolfi, Esq. and the accompanying documentation as to the work performed by the Vorys firm in the instant action to support the award requested. The Court finds the hourly rates of counsel reasonable and the amount of work performed appropriate and well-documented. Thus, the Court awards a total of $17,727.05 to the Vorys, Sater, Seymour and Pease, LLP firm for attorneys' fees and costs.
With respect to the request by Robert W. Zelnick, Esq. of the Washington, D.C. firm of McDermott, Will and Emery, the Court finds that the hourly rates of counsel, while higher than that of the Vorys firm, to be reasonable for the Washington, D.C. area. The Court concludes, however, that it is inappropriate to award fees incurred for work performed in connection with the California action. Since Zelnick's firm did perform some work on the instant case, the Court concludes that an award of $15,000.00 is appropriate.
V.
The Plaintiffs' Request for Attorneys' Fees and Costs is GRANTED in part. The Plaintiffs are hereby AWARDED a total award of $32,727.05.
IT IS SO ORDERED.