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Sata Gmbh & Co. KG v. Hauber

United States District Court, N.D. Oklahoma

August 7, 2017

SATA GMBH & CO. KG, Plaintiff,
v.
JERRY HAUBER, Defendant.

          OPINION AND ORDER

          CLAIRE V. EAGAN, UNITED STATES DISTRICT JUDGE

         Now before the Court is plaintiff's Motion for Attorneys' Fees and Brief in Support (Dkt. # 29). Plaintiff asks the Court to enter a judgment of attorney fees in favor of plaintiff and against defendant in the amount of $34, 550. Dkt. # 29, at 1. As defendant has not appeared or defended this case, the Court enters this opinion and order without waiting for a response to plaintiff's motion. See Gibson v. Simm Assocs., Inc., No. 14-CV-0730-CVE-FHM, 2015 WL 363898, at *1 (N.D. Okla. Jan. 27, 2015).

         I.

         Plaintiff filed this case alleging that defendant sold counterfeit versions of plaintiff's paint spray guns. Dkt. # 2, at 8-10. Plaintiff asserted claims for trademark counterfeiting, trademark infringement, and false designation of origin/unfair competition in violation of the Lanham Act, 15 U.S.C. § 1051 et seq., common law trademark infringement and unfair competition, and design patent infringement pursuant to 35 U.S.C. § 289. Dkt. # 2, at 10-15. The same day it filed the complaint, plaintiff filed an ex parte motion for a temporary restraining order, seizure order, and preliminary injunction (ex parte motion). Dkt. # 3. The Court denied the ex parte motion as to the temporary restraining order and seizure order, and ordered that it would address plaintiff's motion for a preliminary injunction once defendant had been served and provided an opportunity to respond to the motion. Dkt. # 8, at 3-4.

         Defendant was served on May 30, 2017 by personal service. Dkt. # 12, at 1. After defendant was served, the Court ordered him to file, along with his answer or responsive pleading, a response to plaintiff's motion for preliminary injunction no later than June 20, 2017. Dkt. # 14. Defendant failed to file either a responsive pleading or a response to plaintiff's motion. On June 21, 2017, plaintiff asked the Court to grant its motion for preliminary injunction due to defendant's failure to answer. Dkt. # 16. The Court found plaintiff's motion for preliminary injunction moot because plaintiff was entitled to final relief under Rule 55 based on defendant's failure to answer or file a responsive pleading within 21 days of service as required by Rule 12(a). Dkt. # 17, at 1. The Court ordered plaintiff's counsel to proceed under Rule 55. Id. at 2.

         Plaintiff filed a motion for entry of default (Dkt. # 18), which was denied because plaintiff failed to include information regarding defendant's military status or competency in the affidavit supporting its motion. Dkt. # 19. Plaintiff filed a second motion for entry of default (Dkt. # 20), and on June 29, 2017, the Clerk of the Court entered default against defendant. Dkt. # 23. On July 10, 2017, the Court advised plaintiff that it was appropriate for it to file a motion for default judgment at that time. Dkt. # 24. Plaintiff filed a motion for default judgment (Dkt. # 25), and the Court entered default judgment and a permanent injunction against defendant on July 18, 2017. Dkt. # 27. Plaintiff now asks the Court to enter a judgment of attorney fees in favor of plaintiff and against defendant in the amount of $34, 550. Dkt. # 29, at 1.

         II.

         Plaintiff seeks attorney fees pursuant to the Lanham Act, which gives courts the discretion to award reasonable attorney fees to the prevailing party in “exceptional” trademark infringement cases. 15 U.S.C. § 1117(a). The Lanham Act gives no guidance on what is an exceptional case, but the Tenth Circuit has determined that an exceptional case is one in which the trademark infringement is “malicious, fraudulent, deliberate, or willful.” United Phosphorus, Ltd. v. Midland Fumigant, Inc., 205 F.3d 1219, 1232 (10th Cir. 2000) (citing Bishop v. Equinox Int'l Corp., 154 F.3d 1220, 1224 (10th Cir. 1998)). The Court has already determined that defendant willfully used a counterfeit mark in violation of the Lanham Act. Dkt. # 29, at 2. Thus, the Court has the discretion to award plaintiff reasonable attorney fees in this case under § 1117(a).

         III.

         The Tenth Circuit has approved the lodestar method for calculating reasonable attorney fees under the Lanham Act. United Phosphorus, 205 F.3d at 1233. Using this method, “the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate” results in a presumptively reasonable fee. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). The court may then adjust the lodestar based on other factors, such as the time and labor required, the novelty and difficulty of the case, skill required, the results obtained, and awards in similar cases. See Johnson v. Ga. Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974); Homeward Bound, Inc. v. Hissom Mem'l Ctr., 963 F.2d 1352, 1356 (10th Cir. 1992) (noting that district courts should look to the factors set out in Johnson to guide their calculations and review of reasonable attorney fees). However, many of the these factors are properly “subsumed within the initial calculation of hours reasonably expended at a reasonable rate.” Homeward Bound, 963 F.2d at 1356 (quoting Hensley, 463 U.S. at 434 n.9). “[T]he fee applicant bears the burden of establishing entitlement to an award and documenting the appropriate hours expended and hourly rates.” Case v. Unified Sch. Dist. No. 233, 157 F.3d 1243, 1249 (10th Cir. 1998).

         Plaintiff seeks $34, 550 in attorney fees, representing 127.1 hours of work by two attorneys. Dkt. # 29. Steven A. Caloiaro, a lawyer[1] with six years experience as an intellectual property litigator, performed 110.6 hours of work at an hourly rate of $275. Dkt. # 29-1, at 7-16. George M. Miles, a partner with over 30 years experience as a litigator, performed 16.5 hours at an hourly rate of $250. Dkt. # 29-2, at 5. Plaintiff has submitted in support of its motion time records and declarations from both Caloiaro and Miles stating that the hours and rates billed are reasonable. See Dkt. ## 29-1, 29-2. The Court will first consider whether the rates billed are reasonable in this case.

         A.

         To determine whether an hourly rate is reasonable, courts look to “the prevailing market rate in the relevant community.” Malloy v. Monahan, 73 F.3d 1012, 1018 (10th Cir. 1996) (citing Blum v. Stenson, 465 U.S. 886, 895 (1984)). “Unless the subject of the litigation is ‘so unusual or requires such special skills' that only an out-of-state lawyer possesses, ‘the fee rates of the local area should be applied even when the lawyers seeking fees are from another area.'” Jane L. v. Bangerter, 61 F.3d 1505, 1510 (10th Cir. 1995) (quoting Ramos v. Lamm, 713 F.2d 546, 555 (10th Cir. 1983)). This is a patent and trademark infringement case that involves counterfeit paint spray guns. The Court sees no reason why an out-of-state lawyer would be necessary to litigate these issues, and therefore, the fee rates of the Northern District of Oklahoma will be applied.

         The Court finds that the hourly rate of $250 for Miles is reasonable. He is a partner at his law firm with decades of litigation experience, and an hourly rate of $250 is common for an experienced litigator in this district. See, e.g., McCrary v. Country Mut. Ins. Co., No. 13-CV-507-JED-PJC, 2016 WL 8118183, at *2 (N.D. Okla. June 22, 2016) (“This Court has routinely allowed hourly rates of $250 for commercial litigation.”). However, Caloiaro's hourly rate is inconsistent with the local market. He has six years of experience and performed the majority of the work on this case presumably as an associate. See supra note 1. The Court will reduce Caloiaro's hourly rate to $175, which is consistent with the local market and reflective of his skill and experience. See ...


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