United States District Court, D. Columbia
September 30, 2005.
HAKAN LANS, Plaintiff,
DELL COMPUTER CORP. Defendant. UNIBOARD AKTIEBOLAG, Plaintiff, v. ACER AMERICA CORP. et al. Defendants.
The opinion of the court was delivered by: JOHN PENN, Senior District Judge
This matter is before the Court pursuant to Dell Computer
Corporation's Petition For Attorney's Fees And Supporting
Memorandum [#s 180, 221]. Dell Computer Corporation is seeking
attorneys fees and costs, including pre-judgment and
post-judgment interest. As explained more fully below, the Court
concludes that Dell should be awarded a specified amount in
attorneys fees, costs, and pre-judgment and post-judgment
interest, with various deductions.
On September 6, 2001, the Court granted Dell Computer
Corporation's ("Dell") Motion for Attorneys Fees against Hakan Lans ("Lans") and Uniboard
Aktiebolag ("Uniboard").*fn1 Dell subsequently filed it's
fee petition against Uniboard and Lans ("Plaintiffs") on October
12, 2001 and October 15, 2001, respectively. However, on January
14, 2002, Plaintiffs filed a Motion for Reconsideration of the
September 6, 2001 order. The Court denied plaintiffs' motion on
June 23, 2005; after which Dell filed a supplemental petition for
fees, costs, and pre-judgment and post-judgment interest.
For fees and expenses incurred before September 27, 2001, Dell
requests an award of $782,179 against Lans ("Petition
I").*fn2 This award includes $568,052 requested in Dell's
first petition, and $214,127 in pre-judgment and post-judgment
interest. As against Uniboard ("Petition II"), Dell requests
$61,840 that includes $48,508 requested in the original petition,
and $13,332 in pre-judgment and post-judgment interest.*fn3
For fees and expenses incurred since September 27, 2001
("Petition III"), Dell requests an award of $182,303 against Lans
and Uniboard collectively.*fn4 This calculation includes
$159,632 for attorney's fees, $15,771 for expenses, and $6,900 in
post-judgment interest. Id. DISCUSSION
I. Standard for Determining Attorney Fee Awards
When assessing whether an attorney fee request is reasonable,
the court must multiply the number of hours expended on the
litigation by a reasonable hourly rate. Bolden v. J & R, Inc.,
135 F.Supp.2d 177, 179 (D.D.C. 2001), citing Hensley v.
Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 1939 (1983). An
attorney's billing rate is presumed reasonable if it is "in line
with those prevailing in the community for similar services by
lawyers of reasonably comparable skill, experience, and
reputation." Cumberland Mountains, Inc. v. Hodel,
273 U.S.App.D.C. 78, 80-81, 857 F.2d 1516, 1518-19 (1988).
The fee applicant bears the burden of establishing entitlement
to an award, and documenting the appropriate hours expended and
the hourly rates. Hensley, 461 U.S. at 437, 103 S.Ct. at 1941.
The documentation must be sufficient in detail and probative
value to allow the court to determine, with a high degree of
certainty, that such hours were actually and reasonably expended.
Role Models America v. Brownlee, 359 U.S.App.D.C. 237,
353 F.3d 962, 970 (2004). "Where the documentation of hours is inadequate,
the district court may reduce the award accordingly." Hensley,
461 U.S. at 433, 103 S.Ct. at 1939. Hence, counsel for the
prevailing party should make a good faith effort to exclude hours
that are excessive, redundant, or unnecessary. Id. at 434,
II. Petitions I & II
A. Reasonableness of Hourly Rates
Plaintiffs claim that the hourly rates in Petitions I and II
are unreasonable and not properly supported. See Lans Resp. at
6, Uniboard Resp. at 3. However, Dell produced National Law Journal surveys for the billing years covered in Petitions I and
II, which prove that it's attorney billing rates were in line
with the market rates of other attorneys.*fn5 See Dell's
Reply to Lans Resp., Ex. B-H. Moreover, courts in this circuit
recognize National Law Journal surveys as sufficient evidence of
the reasonableness of attorney fee rates. See Salazar v.
District of Columbia, 123 F.Supp.2d 8, 14 (D.D.C. 2000); Davis
v. The Catholic Univ. Of Am., No. 99-1153, 1999 WL 813663, at *
4 (D.D.C. August 31, 1999) . Hence, the Court finds that the
attorney fee rates in Petitions I and II are reasonable.
B. Vague Entries
Lans claims that some of the time entries in Petition I are so
inadequately described or redacted that it is impossible to
assess the reasonableness of the fee. See Lans' Resp. at 6.
These include entries such as: "review draft brief" and
"attention to consultant agreement." Id. Similarly vague
entries were included in Petition II; including repetitive
entries where three attorneys billed for processing a notice of
appearance. See Uniboard's Resp. at 3. "Such generic time
entries are inadequate to meet a fee applicant's `heavy
obligation to present well-documented claims.'" Role Models,
353 F.3d at 971, quoting Kennecott Corp. v. EPA,
256 U.S.App.D.C. 218, 222, 804 F.2d 763, 767 (1986). Therefore, the
total fee requested in Petition I should be reduced by $6,718,
and Petition II should be reduced by $2,878.
C. Duplicative Litigation
Lans argues that Dell's fees in Petition I should be reduced by
$13,446 for hours spent filing redundant motions. See Lans' Resp. at 8. In support of
his claim, Lans refers to two 1998 filings where Dell filed two
motions for a protective order within 10 days.*fn6 Id.
Dell claims that the motions were necessary at the time to
respond to the actions of Lans' counsel. See Dell's Reply to
Lans at 12. Given the nature of the filings, the Court is
satisfied that the filings at issue were not duplicative, but
necessary for the litigation.
D. Unrelated Matters
Lans claims that Petition I includes billing for matters
unrelated to the litigation. Lans specifically refers to time
billed for research into the possibility of certain
litigation.*fn7 See Lans Resp. at 4. Dell argues that the
research was direct result of the law suit, and was necessary to
protect Dell's interests. See Dell's Reply to Lans at 6. Upon
review of the entries, the Court agrees with Dell and will not
take any deductions on this basis.
Lans also requests a reduction in Petition I for the billing of
matters related to the Uniboard litigation. Since Dell filed a
separate attorney fee petition against Uniboard (referred to as
"Petition II"), those fees should be deducted. Hence, Petition I
should be reduced by $1,365.
E. Unjustified Time Entries
Plaintiffs claim that Petitions I and II include unjustifiable
entries for time spent on staffing issues, research on the Court,
and the filing and preparing of indexes. Lans Resp. at 5,
Uniboard Resp. at 3. The Supreme Court has held that "purely
clerical or secretarial tasks should not be billed at a paralegal rate regardless of who performs
them." Missori v. Jenkins, 491 U.S. 274, 288 n. 10,
109 S.Ct. 2463, 2472 n. 10 (1989). Hence, entries for time spent preparing
indexes and addressing staffing issues should be excluded.
Accordingly, Petition I should be reduced by $6,478.65, and
Petition II should be reduced by $372.
F. Non-Taxable Expenses
In Petitions I and II, Dell requests non-taxable expenses for
photocopying, facsimile, and telephone calls.*fn8 Lans
argues that Dell is not entitled to non-taxable expenses because
the Court's September 6, 2001 order, granting Dell's motion for
attorney fees, does not specifically provide for such expenses.
See Lans Resp. at 10, Uniboard Resp. at 6. However, Dell's
motion for attorney fees included a request for non-taxable
expenses as required under Federal Rule of Civil Procedure
54(d)(2)(a). See Dell's Mot. Atty Fees. Moreover, the Federal
Circuit interprets attorney fees under 35 U.S.C. § 285 to include
"those sums that the prevailing party incurs in the preparation
for and performance of legal services related to the suit."
Mathis, 857 F.2d at 757, quoting Central Soya Co. v. Geo. A.
Hormel & Co., 723 F.2d 1573, 1578 (Fed. Cir. 1983). Nonetheless,
since Dell has not provided the Court with information to
determine how these costs are attributable to the litigation, the
expenses in Petitions I and II shall be reduced by 50 percent.
See Role Models, 353 F.3d at 974; In re North,
313 U.S.App.D.C. 188, 199, 59 F.3d 184, 189 (1995).
III. Petition III
A. Reasonableness of Rates Plaintiffs argue that Dell's rates in Petition III are above
the market rate, and therefore should be reduced by 27.6 percent.
See Pls.' Opp. to Dell's Suppl. Petition ("Pls.' Opp.") at 8.
Plaintiffs refer to the 2002 AIPLA survey which shows that Dell's
hourly rates were well above the 75th percentile. Id. Dell
contends that the rates were necessary to account for counsels'
experience. Dell also references National Law Journal surveys
showing that their hourly rates are consistent with the
prevailing market rate. See Dell's Reply to Pls.' Opp.*fn9
While courts in this circuit have found National Law Journal
surveys instructive in determining whether rates are reasonable,
they have also looked to American Intellectual Property Law
("AIPLA") surveys which take into account the experience and
practice area of the attorney. See Salazar,
123 F.Supp.2d at 14; Davis, No. 99-1153, 1999 WL 813663, at * 4 (finding
National Law Journal surveys sufficient to support attorney fee
rates). See also Mathis, 857 F.2d at 7576 (approving the
use of AIPLA surveys to determine reasonableness of hourly
rates). Hence, in the interest of equity, the Court will apply a
weighted reduction of 15 percent to Dell's rates in Petition III.
B. Vague Entries
Plaintiffs claim that Dell's entries in Petition III are too
vague to assess the reasonableness of the charge. These charges
include: "advice regarding attorneys fees," "advice regarding
strategy," "communications regarding case status," "consideration
of attorneys fees appeals issues," and "communications regarding
attorneys' fees appeals." See Pls.' Opp. at 3, Ex. A. Upon
review of these entries, the Court finds that Petition III should
be reduced by $11,278.
C. Unnecessary Billing
Plaintiffs claim that of Dell's time entries in Petition III
are repetitive and unnecessary. One such set of entries concerns retrieving docket sheets from
the Court of Appeals for the Federal Circuit. See Pls.' Opp.,
Ex. A. Plaintiffs' argue that these charges are unnecessary given
the ability to retrieve docket sheets on the PACER system. Id.
at 5. Other duplicative charges include numerous time entries for
"retrieving hearing transcripts." Id. at 6. Since duplication
of effort is a basis on which hours may be reduced, Petition III
shall be reduced for such charges in the amount of $2,103. See
Role Models America, Inc., 353 F.3d at 972.*fn10
D. Secretarial Tasks
Plaintiffs argue that entries for tasks such as "organizing
files" are purely administrative, and hence are not billable. See
Pls.' Opp., Ex. A. The entries at issue include time billed for:
"organizing files," "updating files," and "processing incoming
court papers." The Supreme Court has held that "purely clerical
or secretarial tasks should not be billed at a paralegal rate
regardless of who performs them." Missori v. Jenkins,
491 U.S. 274, 288 n. 10, 109 S.Ct. 2463, 2472 n. 10 (1989). Hence,
Petition III should be reduced by $1,443.
Plaintiffs also reference an entry by a senior partner for
"preparation of brief." See Pls.' Opp. at 6, Ex. A. Plaintiffs
argue that it is inappropriate for a senior partner to take care
of such administrative tasks. As the entry itself is vague, and
Dell has not proffered how preparation by that partner was
necessary to further the litigation, Petition III should be
reduced by an additional $1,322.50.
E. Inapplicable Matters & Unidentified Expenses Plaintiffs also seek deductions for charges related to the
malpractice action.*fn11 Since the malpractice case is a
separate action before this Court, Petition III should be reduced
by $591.50. The Court shall further reduce Petition III for
unidentified expenses totaling $2,842.41. See Pls.' Opp, Ex. C.
III. Pre-Judgment Interest
A district court has authority "in cases of `bad faith or other
exceptional circumstances' to award prejudgment interest on the
unliquidated sum of an award made under [35 U.S.C. § 285]."
Mathis, 857 F.2d at 761. In it's September 6, 2001 opinion,
this Court found that the above-captioned cases were
"exceptional" as required for an award of attorneys fees pursuant
to 28 U.S.C. § 285. See September 6, 2001 Mem. Op. at 11, 19.
Accordingly, Dell is entitled to pre-judgment interest on it's
attorney fee award.
IV. Post-Judgement Interest
Plaintiffs contend that Dell is not entitled to post-judgment
interest until the Court determines an appropriate award. The
Federal Circuit has held that interest on an attorney fee award
"runs from the date of the judgment establishing the right of the
award, not the date of the judgment establishing its quantum."
Mathis, 857 F.2d at 760. Moreover, the Supreme Court has held
that "the purpose of post-judgment interest is to compensate the
successful plaintiff for being deprived of compensation for the
loss from the time between ascertainment of the damage and the
payment by defendant." Kaiser Aluminum & Chem Corp. v.
Bonjorno, 494 U.S. 827, 835-36, 110 S.Ct. 1570, 1576 (1990).
Accordingly, Dell is entitled to post-judgment interest beginning from September 6, 2001.
For the foregoing reasons, Dell shall be awarded $503,557.35 in
attorneys fees and $24,996.50 expenses, plus pre-judgment and
post-judgment interest for Petition I. With respect to Petition
II, Dell shall be awarded $40,975 in fees, $2141.50 in expenses,
plus pre-judgment and post-judgment interest. With regard to
Petition III, Dell shall be awarded $161,570 in fees minus a
weighted reduction of 15% in attorney billing rates, and $15,771
in expenses, plus post-judgment interest. An appropriate order
accompanies this Memorandum Opinion.
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