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DIRECTV, Inc. v. Walsh

October 12, 2006

DIRECTV, INC., PLAINTIFF
v.
WILLIAM WALSH, DEFENDANT



The opinion of the court was delivered by: Judge Vanaskie

MEMORANDUM

Before the Court is Plaintiff DIRECTV, Inc.'s ("DIRECTV"), Motion for Attorney's Fees and Taxable and Non-Taxable Costs. (Dkt. Entry 86.) DIRECTV filed the instant motion following a judgment in its favor and against Defendant William Walsh on its claims brought pursuant to 47 U.S.C. § 605(a); 18 U.S.C. § 2511(1)(a); and 18 PA. CONS. STAT. ANN. § 910(a). As the prevailing party, DIRECTV may seek its attorney's fees and costs. For the reasons that follow, DIRECTV's motion will be granted in part and denied in part.

I. BACKGROUND

DIRECTV commenced this action on January 13, 2003, by filing a complaint naming Sally Lombardo, Nicholas W. Knepper, Leonard Stroh, and Mr. Walsh as Defendants. (Dkt. Entry 1.) DIRECTV secured a default judgment against Mr. Knepper and settled the claims against Ms. Lombardo and Mr. Stroh, leaving Mr. Walsh as the sole Defendant. Following a non-jury trial on August 30, 2004, the Court concluded that DIRECTV had proven by a preponderance of the evidence that Mr. Walsh unlawfully intercepted its decrypted signal in violation of 47 U.S.C. § 605(a) and 18 U.S.C. § 2511(1)(a), and that Mr. Walsh was in possession of an "unlawful telecommunication device" in violation of 18 PA. CONS. STAT. ANN. § 910(a). (See Memorandum and Order of August 16, 2005, Dkt. Entry 80.) The Court awarded DIRECTV statutory damages of $1,000.00 under 47 U.S.C. § 605(e)(3)(C)(i)(II), and $250.00 under 18 PA. CONS. STAT. ANN. § 910(d.1)(2), but declined to award damages under 18 U.S.C. § 2520(c). As the prevailing party, DIRECTV filed the instant motion for attorney's fees and costs. (Dkt. Entry 86.)

DIRECTV retained the legal services of Peter V. Marcoline, Jr., who served as local counsel, and the law firm of Greer, Herz & Adams, L.L.P. ("GHA"), of Texas. In the motion, DIRECTV seeks an award of $43,663.98*fn1 in attorney's fees and $10,375.03 for costs (taxable and non-taxable) and expenses for a total of $54,039.01. (Motion for Attorney's Fees and Taxable and Nontaxable Costs, Dkt. Entry 86, at 7.) Both Mr. Marcoline and GHA submitted documentation in support of the motion. Mr. Walsh objects to the amount sought by DIRECTV on the basis that some of the billing entries include work for additional Defendants; that the number of attorney hours devoted to the case was excessive, redundant, and unnecessary; and insufficient specificity. (See generally Defendant's Brief in Opposition to Motion for Attorney's Fees and Taxable and Non-taxable Costs, Dkt. Entry 88.)

II. DISCUSSION

A prevailing party in an action brought under 47 U.S.C. § 605(a); 18 U.S.C. § 2511(1)(a); and/or 18 PA. CONS. STAT. ANN. § 910(a) is or may be entitled to an award of attorney's fees and costs. Where a plaintiff prevails on a claim under 47 U.S.C. § 605(a), the court "shall direct the recovery of full costs, including awarding reasonable attorneys' fees to an aggrieved party who prevails." 47 U..S.C. § 605(e)(3)(B)(iii) (emphasis added). Attorney's fees and costs are available for a party who prevails under 18 U.S.C. § 2511(1)(a) and 18 PA. CONS. STAT. ANN. § 910(a), although the award is discretionary with the court. See 18 U.S.C. § 2520(a)(an aggrieved party "may in a civil action recover . . . such relief as may be appropriate") (emphasis added); id. § 2520(b)(3) ("appropriate relief includes . . . a reasonable attorney's fee and other litigation costs reasonably incurred"); 18 PA. CONS. STAT. ANN. § 910(d)(2)(iv) ("The court may . . . in its discretion, award reasonable attorney fees and costs . . . to an aggrieved party who prevails[.]") (emphasis added). Since the Court has entered judgment in DIRECTV's favor on its claim under 47 U.S.C. § 605(a), an award of attorney fees and costs is mandatory. Because DIRECTV is entitled to attorney's fees and costs under 47 U..S.C. § 605(e)(3)(B)(iii), the Court will deny DIRECTV's motion to the extent it seeks attorney's fees and costs under 18 U.S.C. § 2520(b)(3) and 18 PA. CONS. STAT. ANN. § 910(d)(2)(iv).

A. Attorney's Fees

Though the Court must award attorney's fees to DIRECTV, that award is limited to reasonable attorney fees. The Third Circuit has never directly addressed the issue of attorney fees under § 605(e)(3)(B)(iii), but it has provided guidance on awarding reasonable fees in general. See Public Interest Group of New Jersey, Inc. v. Windall, 51 F.3d 1179 (3d Cir. 1995). In Windall, the successful plaintiff in an action brought under the Clean Water Act sought an award of attorneys' fees under 33 U.S.C. § 1365(d). "[A] reasonable fee is one which is 'adequate to attract competent counsel, but which do[es] not produce windfalls to attorneys.'"

Id. at 1185 (quoting Student Public Interest Research Group of New Jersey, Inc. v. AT & T Bell Laboratories, 842 F.2d 1436, 1448 (3d Cir. 1988)). Relying upon the Supreme Court's decision in Hensley v. Eckerhart, 461 U.S. 424 (1983), the court recognized that reasonable fees are "the product of the hours reasonably expended and the applicable hourly rate for the legal services." Id. (citing Hensley, 461 U.S. at 433). This product, known as the "lodestar," is only the beginning of the Court's analysis because, after its determination, the Court's discretion is activated and it may adjust the fee for a variety of reasons, most notably "the 'results obtained' by the plaintiff."*fn2 Id. (citing Hensley, 461 U.S. at 434). The lodestar method has been utilized by other courts in awarding attorney fees under 47 U.S.C. § 605(e)(3)(B)(iii). See, e.g., Kingvision Pay-Per-View Ltd. v. Lalaleo, 429 F. Supp. 2d 506, 516 (E.D.N.Y. 2006); DIRECTV, Inc. v. Arnold, 392 F. Supp. 2d 415, 418 (N.D.N.Y. 2005); DIRECTV, Inc. v. Atwal, No. Civ S 032499WBSDAD, 2005 WL 1388649, at *2 (E.D. Cal. June 8, 2005); Cablevision Systems New York City Corp. v. Landron, No. 02-CV-2957 (LAK), 2003 WL 430347, at *3 (S.D.N.Y. Jan. 21, 2003).

1. Applicable Hourly Rate

The first step in determining the lodestar is the applicable hourly rate. The starting point is the attorney's usual billing rate, although this is not always dispositive as the courts are advised to calculate the rate "'according to the prevailing market rates in the relevant community.'" Windall, 51 F.3d at 1185-86 (quoting Blum v. Stenson, 465 U.S. 886, 895 (1984)); see also Sheffer v. Experian Information Solutions, Inc., 290 F. Supp. 2d 538, 543-44 (E.D. Pa. 2003). In its supporting documentation accompanying its motion, DIRECTV's attorneys and paralegals charged the following hourly rates:

Peter V. Marcoline, Jr.$175.00 (Jan. 9, 2003, to Oct. 13, 2003)  $200.00 (Oct. 23, 2003, to the present) Charles Phillips$65.00 Alexa Luchak (GHA)$150.00 (Sept. 24, 2003, to Oct. 1, 2003)  $165.00 (Apr. 26, 2004, to the present) Andrew J. Mytelka (GHA)$250.00 John W. Pecore (GHA)$180.00 Joseph R. Russo (GHA)$195.00 Joseph A. C. Fulcher (GHA)$250.00 Janet L. Rushing (GHA)$250.00 LuAnn Millican (GHA)$90.00 S.D.W. (GHA)$90.00 Richard W. Hunter (GHA)$90.00

(Ex. 1, Dkt. Entry 86, at 2; Ex. 2, Dkt. Entry 86, at 2, 20.) Neither Mr. Marcoline nor GHA, however, refers to the prevailing market rate for similar services by lawyers of reasonably comparable skills, experience, or reputation within the Middle District of Pennsylvania. Mr. Marcoline relies upon an award of attorney fees in another case to support his position that his hourly rates of $175.00 and $200.00 are reasonable. (See DIRECTV's Reply Brief to Defendant's Brief in Opposition to Motion for Attorneys Fees and Taxable and Non-taxable Costs, Dkt. Entry 89, at 3-4 (citing Memorandum and Order of July 15, 2004, DIRECTV, Inc., v. Malizia, No. 4:03-CV-074 (M.D. Pa.), Dkt. Entry 73, at 15-16).) Mr. Walsh has not objected to the reasonableness of Mr. Marcoline's rate. As such, the Court finds that $175.00 to $200.00 per hour is a reasonable rate for comparable services within the Middle District of Pennsylvania. The Court also finds that $65.00 per hour for paralegal services is also reasonable within this market.

GHA, however, has not made an effort to justify its rates for attorneys in excess of $200.00, nor paralegal fees in excess of $65.00. Consequently, for the purpose of calculating the lodestar, the applicable hourly rates for attorney and paralegal services will be capped at $200.00 and $65.00, respectively.

2. Time Reasonably Expended

The next step in calculating the lodestar is determining the time reasonably expended by each attorney and paralegal in conducting the litigation. Windall, 51 F.3d at 1188. The Court is obligated "to review the time charged, decide whether the hours set out were reasonably expended for each of the particular purposes described[,] and then exclude those that are 'excessive, redundant, or otherwise unnecessary.'" Id. (quoting Hensley, 461 U.S. at 434). Our Court of Appeals has admonished the district courts to undertake a "thorough and searching analysis" and that "it is necessary that the Court 'go line, by line, by line' through the billing records supporting the fee request." Evans v. Port Authority of New York and New Jersey, 273 F.3d 346, 362 (3d Cir. 2001). Therefore, the Court will examine the work of each attorney and paralegal separately.

a) Peter V. Marcoline, Jr.

Mr. Marcoline, local counsel for DIRECTV, was extensively involved since the commencement of this action. He handled most of the pretrial proceedings. The invoices submitted with the motion disclose that Mr. Marcoline billed DIRECTV for a total of 60.30 hours (18.95 hours at $175.00, and 41.35 hours at $200.00). (See Exs. 1-b to 1-j, Dkt. Entry 86.) The review of Mr. Marcoline's billing invoices convinces the Court that most of the hours were reasonably expended for this litigation. Mr. Marcoline prepared and filed the complaint and prepared and moved for default judgment against several of the defendants, including Mr. Walsh. (Ex. 1-b, Dkt. Entry 86, at 1; Ex. 1-c, Dkt. Entry 86, at 1.) Mr. Marcoline prepared and served discovery requests upon Mr. Walsh, reviewed discovery, and expended several hours in an effort to compel Mr. Walsh's responses to DIRECTV's discovery requests. (See Ex.1-d, Dkt. Entry 86, Ex. 1-e, Dkt. Entry 86; Ex. 1-f, Dkt. Entry 86, at 1-f, at 1-2.) Mr. Marcoline also prepared and briefed DIRECTV's motion for judgment on the pleadings; communicated regularly with GHA to keep the firm apprised of developments in the case; conferred with witnesses, Mr. Walsh's attorney, and the Court; prepared for trial; and attended the pretrial conference and trial as local counsel. (See Exs. 1-f to 1-j, Dkt. Entry 86.)

Overall, Mr. Marcoline's hours were reasonable. However, Mr. Walsh argues that some of Mr. Marcoline's time relates to other Defendants in addition to Mr. Walsh. This action was originally filed against four defendants. (See Complaint, Dkt. Entry 1.) There are billing entries that clearly concern work that involved the other Defendants. The entries for January 9, 2003, and January 13, 2003, for 1 and .25 hours, respectively, relate to the preparation and filing of the complaint in this action. (See Ex. 1.b, Dkt. Entry 86, at 1.) On March 10, 2003, Mr. Marcoline prepared returns of service as to all four defendants and billed .50 hours. (See Ex. 1-c, Dkt. Entry 86, at 1.) On March 10, 2003, Mr. Marcoline prepared and filed requests for default judgment against three defendants, including Mr. Walsh, and billed DIRECTV 1.5 hours. (Id.) On July 23, 2003, Mr. Marcoline prepared the joint case management plan and billed 1.5 hours. (See Ex.1-e, Dkt. Entry 86, at 2.) At the time, Ms. Lombardo and Mr. Walsh were Defendants. Finally, on August 21, 2003, Mr. Marcoline participated in the case management conference with the attorneys for Ms. Lombardo and Mr. Walsh, billing for .5 hours. (See Ex. 1-e, Dkt. Entry 86, at 3.) The entry includes the following notation: "discuss settlement of Lombardo case with Judge ...


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