United States District Court, D. Oregon, Eugene Division
OPINION AND ORDER
Aiken United States District Judge
J & J Sports Productions, Inc. secured a default judgment
against defendants Nuvia de Carmen Gutierrez and Las
Catalinas for Illegally broadcasting "The Fight of the
Century" between Floyd Mayweather, Jr. and Manny
Pacquiao. Plaintiff now seeks attorneys' fees (doc. 14)
and costs (doc. 16). Plaintiff also filed a motion to alter
or amend the judgment (doc. 17), requesting an increase in
statutory authority mandates that "the court.. . shall
direct the recovery of full costs, including awarding
reasonable attorneys' fees to an aggrieved party who
prevails." 47 U.S.C. § 6O5(e)(3)(B)(iii). Even
though defendant has not appeared in this action and,
therefore, has not objected to plaintiffs requests, the Court
has an independent duty to review a motion for attorneys'
fees for reasonableness. Gates v. Deukmejian, 987
F.3d 1392, 1398 (9th Cir. 1992).
Attorneys' Fees and Costs
for plaintiff Bruce Orr has thirty-six years' experience
and is a partner at a law firm in Portland, Oregon. He
requests a rate of $350 per hour. In compliance with Local
Rule 54-3, 1 compared this rate with typical billing rates in
the Oregon State Bar's Economic Survey ("OSB
Survey"). According to the OSB Survey, in 2016,
practitioners in Portland with more than 30 years'
experience billed, on average, $413 per hour. The 25th
percentile rate was $300 per hour and 95th percentile was
$610 per hour. In light of that report, plaintiffs request is
reasonable. I also find the reported time spent on this
litigation (8.3 hours) to be reasonable based on the
relatively simple and procedural nature of this litigation.
Accordingly, I award $2, 905 in attorneys' fees.
requests $150 per hour for paralegal Antony Nickles, who has
thirteen years' experience. This District has recently
awarded paralegals with thirteen years' experience $121
per hour, and paralegals with seven years' experience
$113 per hour. See Pac. Coast Fruit Co. v. Ron Squires
db.a. Four Seasons Farmers Mkt., 2016 WL 4443166, *3 (D.
Or. Aug. 19, 2016) (reviewing national data on paralegal
compensation and reducing a requested $175 hourly rate to
$121 per hour, the national average for paralegals with
between 11 and 15 years' experience); Dupree v.
Harrington, 2015 WL 437942, *2 (D. Or. Feb. 3, 2015)
(reducing requested hourly rate to national average).
Plaintiff has not explained why Mr. Nickles should be paid a
rate that exceeds the average rate for his experience level.
Adjusting a small amount for inflation, I conclude $125 per
hour is appropriate. Upon examination of the record, I find
the 14.4 hours spent on this litigation by the paralegal to
be reasonable because of the amount of filing and case
management with respect to the service and investigation done
in this case. As such, plaintiff is awarded $1, 800 for
costs are reasonable as they are results of the underlying
litigation. Of note, plaintiff submits "other"
costs that include $610 for investigation fees and $31.68 for
record searches for service. Plaintiff represents that
because the investigation discovered defendant's
violation, it should recoup those costs. I agree.
Accordingly, I award $1, 176.68 in costs.
Mo tion to Alter or Amend Judgment
also filed a motion to alter or amend the judgment under
Federal Rule of Civil Procedure 59(e), which states that a
"motion to alter or amend a judgment must be filed no
later than 28 days after the entry of the judgment."
Fed. R. Civ. Pro. 59(e). The motion is timely as judgment was
filed on January 9, 2018 and plaintiff filed this motion on
February 6, 2018, exactly 28 days later. Generally, the court
"has considerable discretion when considering a motion
to amend a judgment[.]" Turner v. Burlington N.
Santa Fe R.R. Co., 338 F.3d 1058, 1063 (9th Cir. 2003).
"[A]mending a judgment after its entry remains an
extraordinary remedy which should be used sparingly."
Allstate Ins. Co. v. Herron, 634 F.3d 1101, 1111
(9th Cir. 2011) (internal quotation marks omitted). Such a
motion may be granted under four circumstances:
(1) if such motion is necessary to correct manifest errors or
law or fact upon which the judgment rests; (2) if such motion
is necessary to present newly discovered or previously
unavailable evidence; (3) if such motion is necessary to
prevent manifest injustice; or (4) if the amendment is
justified by an intervening change in controlling law.
Id Plaintiff avers that I committed
clear error by not explicitly considering general deterrence
when I imposed damages.
previous Opinion and Order, I awarded $6, 000 in compensatory
damages on plaintiffs trespass to chattels claim because
defendants would have had to pay a $6, 000 licensing fee to
legally broadcast the fight. J & J Sports Prods.,
Inc. v. Gutierrez, 2018 WL 344971, *2 (D. Or. Jan. 8,
2018). I also carefully considered the statutorily prescribed
damages for theft of cable services. Holding that defendants
willingly violated the statute for financial gain, I imposed
$3, 000 in statutoiy damages and $3, 000 in enhanced damages.
That brought the total amount of damages to $12, 000, double
the licensing fee. I also noted that there was no evidence to
suggest that defendants were repeat violators, and having to
pay double the licensing fee should sufficiently deter future
no reason to depart from my previous judgment. District
courts across the country are entering damages judgments of
lesser value for violations of the same statute. See J
& J Sports Prods., Inc. v. Shaba, 2018 WL 329904, *2
(E.D. Mich. Jan. 9, 2018) (awarding damages double the
licensing fee); J & J Sports Prods., Inc. v
Sutton, 2018 WL 297597, *3-4 (W.D. Ky. Jan. 4, 2018)
(awarding $8, 000 in damages including the $6, 000 licensing
fee); J & J Sports Prods., Inc. v. Rio Bravo,
LLC, 2017 WL 6722810, *3-4 (D. Md. Dec. 27, 2017)
(awarding $8, 000 in statutoiy and enhanced damages). When
comparing the value of damages I imposed to the value of
damages awarded from other courts, I find that the amount is
of a level sufficient to deter future offenders from
illegally broadcasting copyrighted material. Plainly, that
award should encourage all possible offenders to pay the
original licensing fee rather than paying twice that amount
as a legal penalty. I also note that because the statute
mandates attorneys' fees for the prevailing party,
defendants are, for all practical purposes, liable for almost
triple the original licensing fee. The goal of general
deterrence is aided by the fact that a prevailing party is
statutorily entitled to attorneys' fee in addition
to damages. By awarding $12, 000, I am even following
plaintiffs request for "a low five-figure
judgment." PL's Mot. Alter or Amend J 6 (citing
Kingvision Pay-Per-View Ltd. v. Lake Alice Bar, 168
F.3d 347, 350 (9th Cir. 1999). The discretion of the court to
award statutory and enhanced damages is not an opportunity to
create a windfall for one party, but to sufficiently deter
illegal action and make the injured party whole.
motion to alter or amend the judgement (doc. 17) is DENIED,
the request for costs (doc. 16) is GRANTED, the motion for
attorneys' fees (doc. 14) is GRANTED subject to the
reduction in the paralegal billing rate explained above.