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Best Medical International, Inc v. Accuray

November 16, 2011


The opinion of the court was delivered by: McVerry, J.


Pending before the Court is DEFENDANT ACCURAY INCORPORATED'S MOTION/PETITION FOR ATTORNEYS' FEES AND EXPENSES (Document No. 92), with Declarations from counsel Madison Jellins and Kirsten Rydstrom (Document No. 94). Plaintiff Best Medical International, Inc. ("BMI") filed a memorandum and brief in opposition (Document No. 93, 95); Accuray filed a reply brief (Document No. 98) with sealed supplemental Declarations from Jellins and Rydstrom (Document Nos. 101, 102); and BMI filed a sur-reply brief (Document No. 107). Thus, the petition has been fully briefed and is ripe for disposition.

Factual and Procedural Background

This is a patent infringement case in which Plaintiff BMI has repeatedly failed to comply with the Local Patent Rules. To briefly recap, on June 15, 2011 Accuray was forced to file a motion to compel complete Initial Disclosures by BMI pursuant to LPR 3.1. On June 30, 2011, the Court entered an Order (the "June 30 Order") which granted Accuray's motion to compel and criticized BMI's belated and apparently lackadaisical approach to its disclosure obligations under the Local Patent Rules. Despite that chastisement, Accuray was required to file a second motion to enforce the June 30 Order and a third motion to compel adequate Infringement Contentions pursuant to LPR 3.2. Accuray also filed a fourth motion to obtain an extension of time to file its responsive Non-Infringement Contentions. On August 19, 2011, the Court issued a Memorandum Opinion and Order which concluded that "BMI has not complied with the letter or spirit of Local Patent Rules 3.1 and 3.2, or with the Court's June 30 Order." Accordingly, the Court granted Accuray's motions and authorized Accuray to "submit a petition setting forth the reasonable counsel fees and costs it has incurred in connection with each of the motions to compel." (Emphasis added).

Accuray seeks counsel fees incurred by attorneys in three separate locations. Madison Jellins is located in California, Janice Christensen is located in New York City and Kirstin Rydstrom is located in Pittsburgh. Accuray avers that its attorneys are specialized and experienced in patent litigation (Jellins*fn1 -- 21years; Christenson*fn2 -- 8 years; and Rydstrom*fn3 -- 15 years). Accuray also seeks to recover for time billed by Reed Smith senior paralegal Lisa Santucci. Jellins declares that her hourly rate for this case while she was employed by Alston & Bird was $625 per hour, and her current rate at Helix is $550 per hour and that Christensen's hourly rate on this case is $525 per hour. Rydstrom declares that her hourly rate is $565 per hour and that Santucci's paralegal rate is $295 per hour.

The petition and original Declarations conclusorily represented that all hours and expenses were reasonably necessary. However, Accuray did not provide an itemized listing of the tasks performed by any of the timekeepers.

In its response, BMI contended that Accuray failed to establish a prima facie case to recover attorneys fees and costs: (1) by failing to establish the prevailing market rate in the relevant Pittsburgh legal market; and (2) by failing to provide detailed information regarding the tasks performed. BMI suggests that Jellins' and Rydstrom's hourly rate be reduced to $365 per hour; Christensen's rate be reduced to $200 per hour; and Santucci's rate be reduced to $100 per hour. In addition, BMI suggests that all of the hours claimed be reduced by thirty-five percent (35%). BMI also opposed Accuray's effort to recover costs related to the motion to compel Initial Disclosures, the motion for extension of time, and the time spent to prepare the fee petition.

Accuray then filed supplemental Declarations from Jellins and Rydstrom. In her supplemental Declaration, Jellins provided a cursory overview of the tasks performed by her and Christensen. As an illustration, Jellins averred that in connection with the motion to compel Initial Disclosures, she "spent approximately 5 hours drafting meet and confer letters, 10.6 hours working on the Opening brief, and 13.1 hours working on the Reply brief." The other tasks performed by Jellins and Christensen were described with a comparable level of generality. Rydstrom's supplemental Declaration provided additional information about the hourly billing rates of Reed Smith intellectual property attorneys, but did not address BMI's objections about the lack of specificity regarding the tasks performed. Accuray has not produced detailed, dayby-day, task-specific time sheets to support the hours claimed by counsel. In sum, Accuray contends that BMI "is in no position to judge whether the number of hours spent by Accuray was excessive" and argues that the hours spent were attributable to BMI's lackadaisical approach to this case.

In its reply brief, Accuray also contends that it had sufficiently established the reasonableness of its claimed hourly rates. Nevertheless, in further support of its position, Accuray submitted a recent affidavit regarding prevailing Pittsburgh patent litigation rates. The affidavit had been prepared by attorney Kent Baldauf in connection with another patent case pending before this member of the Court, Air Vent, Inc. v. Vent Right Corp., Civil Action No. 08-146. In the affidavit, attorney Baldauf noted that Pittsburgh patent litigation counsel rates range from $300-600 per hour and he opined that the patent attorneys' "requests for $350 per hour for work performed in [the Air Vent] case falls within the prevailing fee scale and is very reasonable."

In its surreply brief, BMI continues to argue that: (1) fees should be limited to the motion to enforce the June 30 Order and the motion to compel Infringement Contentions; (2) that the hours claimed are excessive; (3) that Accuray's descriptions of the work performed lack specificity; and (4) that the hourly rates should be reduced. The Court will address these issues seriatim.

The tasks and hours for which Accuray seeks to recover counsel fees are set forth below:

Accuray seeks to recover $107,102.50 in fees based on the Jellins Declarations*fn4 as follows:

A. Motion to Compel Initial Disclosures

a. Jellins 28.7 hours

b. Christensen 24.0 hours

B. Motion to Enforce June 30 Order

a. Jellins 19.3 hours

b. Christensen 21.0 hours

C. Motion to Compel Infringement Contentions

a. Jellins 38.7 hours

b. Christensen 33.6 hours

D. Motion for Extension of Time

a. Christensen 1.0 hours

E. Fee Petition and Reply

a. Jellins (at Helix rate) ...

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