Motion3 Attys Fees SGT Sarver V Nicolas Chartier

Case 2:10-cv-09034-JHN -JC Document 134
Filed 10/27/11 Page 1 of 5 Page ID #:1941
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DAVID HALBERSTADTER (SBN 107033) david.halberstadter@kattenlaw.com SALLY WU (SBN 266294) sally.wu@kattenlaw.com KATTEN MUCHIN ROSENMAN LLP 2029 Century Park East Suite 2600 Los Angeles, CA 90067-3012 Telephone: 310.788.4400 Facsimile: 310.788.4471 Attorneys for Defendant SUMMIT ENTERTAINMENT, LLC
UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA SGT. JEFFREY S. SARVER, ) ) Plaintiff, ) ) vs. ) ) THE HURT LOCKER, LLC; MARK ) BOAL; KATHRYN BIGELOW; ) GREG SHAPIRO; NICOLAS ) CHARTIER; TONY MARK; DONALL) MCCLUSKER; SUMMIT ) ENTERTAINMENT, LLC; VOLTAGE ) PICTURES, LLC; GROSVENOR ) PARK MEDIA, LP; FIRST LIGHT ) PRODUCTIONS, INC.; KINGSGATE ) FILMS, INC. and PLAYBOY ) ENTERPRISES, INC., Jointly and ) Severally, ) ) Defendants. ) ) ) ) Case No. 2:10-cv-09034-JHN (JCx) NOTICE OF MOTION AND MOTION BY DEFENDANT SUMMIT ENTERTAINMENT, LLC FOR AWARD OF ATTORNEYS FEES; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF Date: December 12, 2011 Time: 2:00 p.m. Courtroom: 790 Assigned to the Honorable Jacqueline H. Nguyen
TO ALL PARTIES AND THEIR COUNSEL OF RECORD: PLEASE TAKE NOTICE that on December 12, 2011, at 2:00 p.m. or as soon thereafter as the matter may be heard in Courtroom 790 of the United States District Court for the Central District of California, located at 255 East Temple Street, Los Angeles, California, Defendant Summit Entertainment, LLC (Summit) will and
MOTION FOR AWARD OF ATTORNEYS FEES BY SUMMIT ENTERTAINMENT, LLC
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hereby does move the Court for an award of attorneys fees in the amount of $61,717.50 and costs in the amount of $4,277.28 as a prevailing Defendant in this action pursuant to the Courts Order entered on October 13, 2011 (the October 13 Order). This Motion is made pursuant to the October 13 Order, Rule 54(d) of the Federal Rules of Civil Procedure, Local Rule 54-12, and California Code of Civil Procedure 425.16(c)(2). This Motion is based on this Notice of Motion, the accompanying Memorandum of Points and Authorities and the concurrently-filed supporting Declaration of David Halberstadter, the pleadings, papers and records on file herein, any matter of which the Court may take judicial notice, and such additional evidence and argument as may be presented prior to or at the hearing on this Motion. This Motion is made following the conference of counsel pursuant to Local Rule 7-3, which took place on October 21, 2011. DATED: October 27, 2011 KATTEN MUCHIN ROSENMAN LLP David Halberstadter Sally Wu By: /s/ David Halberstadter David Halberstadter Attorneys for Defendant SUMMIT ENTERTAINMENT, LLC
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MEMORANDUM OF POINTS AND AUTHORITIES I. PRELIMINARY STATEMENT. The Court has already determined that Defendant Summit Entertainment, LLC (Summit) should be awarded its attorneys fees in connection with its successful motion to strike under California Code of Civil Procedure section 425.16. For the reasons discussed below and in the concurrently-filed Declaration of David Halberstadter, Summit should be awarded the total sum of $65,994.78, comprising $61,717.50 in attorneys fees and $4,277.28 in recoverable costs. II. SUMMIT SHOULD BE AWARDED ITS ATTORNEYS FEES AND COSTS IN THE AMOUNT OF $65,994.78. The United States Supreme Court has recently reiterated that, under federal feeshifting statutes, the lodestar approach is the guiding light in determining a reasonable fee. Perdue v. Kenny A., 599 U.S. __, 130 S.Ct. 1662, 167173, 176 L.Ed.2d 494 (2010) (internal quotation marks omitted); Resurrection Bay Conservation Alliance v. City of Seward, Alaska, 640 F.3d 1087, 1095 (9th Cir. 2011).1 Similarly, the California Supreme Court has concluded that the lodestar approach should be followed in determining the award of attorneys fees in antiSLAPP motion cases. Ketchum v. Moses, 24 Cal.4th 1122, 1136 (2001) (because the anti-SLAPP provisions refer to attorney fees and costs without indicating any restrictions on how they are to be calculated, we accordingly presume that the Legislature intended courts use the prevailing lodestar adjustment method); see also Cabral v. Martins, 177 Cal.App.4th 471, 491 (2009) (The amount of an attorney fee award under the anti-SLAPP statute is computed by the trial court in accordance with the familiar lodestar method). Under this method, the court first determines a reasonable number of hours for the work performed and multiplies those hours by a reasonable hourly rate. To
See also Farrar v. Hobby, 506 U.S. 103 (1992) (the usual approach to evaluating the reasonableness of an attorney fee award requires application of the lodestar method); Hensley v. Eckerhart, 461 U.S. 424 (1983) (same). 1
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determine the reasonable number of hours, the Court must evaluate the time expended, the nature and need for the services performed, and the relevant fee records. Hensley v. Eckerhart, 461 U.S. 424, 433-34 (1983). The court then must determine the reasonable hourly rate by considering the rates customarily charged for work of the type performed in the relevant legal community, the reputation and experience of the attorneys who performed the services, the quality of counsel services on behalf of the client, the complexity of the work performed, and the results achieved. Pennsylvania v. Delaware Valley Citizens Council, 478 U.S. 546, 556-57 (1987). The most critical factor in determining a reasonable fee is the degree of success obtained. Farrar v. Hobby, 506 U.S. 103, 114 (1992). Where a plaintiff has obtained excellent results, his attorney should recover a fully compensatory fee. Normally this will encompass all hours reasonably expended on the litigation, and indeed in some cases of exceptional success an enhanced award may be justified. Hensley, supra, 461 U.S. at 435.2 The fees and costs that Summits defense counsel charged in connection with the Anti-SLAPP Motion are presumptively reasonable and should be awarded in full. Summit was represented in this action by two attorneys: Partner David Halberstadter and associate Sally Wu. They expended 115.9 hours and 25.5 hours, respectively, investigating and researching the facts, circumstances and relevant defenses; preparing the motion, joinder, reply papers, and evidentiary objections filed in connection with the Anti-SLAPP Motion; reviewing and analyzing Plaintiffs court filings in connection with the Anti-SLAPP Motion; conferring with other Defendants counsel regarding strategy and other issues relating to the Anti-SLAPP Motion; analyzing the Courts tentative opinion; and preparing for and attending the hearing on the AntiSLAPP Motion, among other things. [Declaration of David Halberstadter
Essentially the same methodology for determining the lodestar amount is followed by California courts. See, e.g., PLCM Group, Inc. v. Drexler, 22 Cal.4th 1084, 1095 (2000) (computation of time spent on a case and the reasonable value of that time, as determined by the reasonable hourly rate prevailing in the community for similar work, is fundamental to a determination of an appropriate attorneys fee award); Ketchum v. Moses, supra, 24 Cal.4th at 1132 (expressly approving the use of prevailing hourly rates as a basis for the lodestar calculation). 2
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(Halberstadter Decl.), 4.] Although it might appear at first blush as though Summit was responsible only for filing a Notice of Joinder in connection with the Anti-SLAPP Motion filed by Defendant The Hurt Locker, LLC and its co-defendants (collectively, the Hurt Locker Defendants) and a subsequent reply brief, in fact, Summits counsel devoted substantial time and effort to researching and drafting all of the sections of the Anti-SLAPP Motion filed by the Hurt Locker Defendants pertaining to Plaintiffs inability to demonstrate the probable validity of his claims. [Id. at 5.] Although Mr. Halberstadter currently bills his time at the hourly rate of $650, Summit was charged an agreed-upon rate of $450 per hour for his services, and a blended rate of $375 per hour for the services of any associates who worked on the matter. The rates charged are reasonable not only due to the extent and complexity of the work described above, but because they are consistent with the reputation and experience of the attorneys and professionals who performed the services and because of the result achieved (complete dismissal of the entire action). [Halberstadter Decl., 7-10.] Summit also incurred third party costs totaling $4,277.28 in connection with the Anti-SLAPP Motion, for expenses such as PACER charges, Westlaw/Lexis research, courier charges, photocopying and transportation expenses. [Id. at 6.] III. CONCLUSION. For the foregoing reasons, Summit respectfully requests that this Court award it attorneys fees and costs in the total amount of $65,994.78. DATED: October 27, 2011 Respectfully submitted, KATTEN MUCHIN ROSENMAN LLP David Halberstadter Sally Wu By: /s/ David Halberstadter David Halberstadter Attorneys for Defendant SUMMIT ENTERTAINMENT, LLC
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Case 2:10-cv-09034-JHN -JC Document 134-1 #:1946
Filed 10/27/11 Page 1 of 6 Page ID
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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA SGT. JEFFREY S. SARVER, ) ) Plaintiff, ) ) vs. ) ) THE HURT LOCKER, LLC; MARK ) BOAL; KATHRYN BIGELOW; ) GREG SHAPIRO; NICOLAS ) CHARTIER; TONY MARK; DONALL) MCCLUSKER; SUMMIT ) ENTERTAINMENT, LLC; VOLTAGE ) PICTURES, LLC; GROSVENOR ) PARK MEDIA, LP; FIRST LIGHT ) PRODUCTIONS, INC.; KINGSGATE ) FILMS, INC. and PLAYBOY ) ENTERPRISES, INC., Jointly and ) Severally, ) ) Defendants. ) ) ) ) ) ) Case No. 2:10-cv-09034-JHN (JCx) DECLARATION OF DAVID HALBERSTADTER IN SUPPORT OF MOTION BY DEFENDANT SUMMIT ENTERTAINMENT, LLC FOR AWARD OF ATTORNEYS FEES Date: December 12, 2011 Time: 2:00 p.m. Courtroom: 790 Assigned to the Honorable Jacqueline H. Nguyen
I, David Halberstadter, declare as follows: 1. I am an attorney at law, duly licensed to practice before all of the courts
of the State of California and admitted to practice before this United States District Court. I am a partner in the law firm of Katten Muchin Rosenman LLP (Katten),
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DECLARATION OF DAVID HALBERSTADTER IN SUPPORT SUMMITS MOTION FOR ATTORNEYS FEES
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which is counsel of record for Defendant Summit Entertainment, LLC (Summit) in this action. I have personal knowledge of the facts set forth in this declaration and, if called as a witness, could and would testify competently to such facts under oath. I submit this Declaration in support of the Summits motion for an award of the attorneys fees it incurred in connection with Defendants successful anti-SLAPP motions. 2. Summit is seeking an award of $61,717.50 in attorneys fees and
$4,277.28 in recoverable costs (for a total award of $65,994.78), which represents the portion of the fees and costs that Summit incurred in connection with the special motion to strike the Complaint pursuant to California Code of Civil Procedure section 425.16 (the Anti-SLAPP Motion) that all of the Defendants filed in this action, and which the Court granted in its entirety pursuant to its Order dated October 13, 2011 (the Order). I have set forth below first a summary of the hours expended by Summits counsel in connection with the Anti-SLAPP Motion, followed by an explanation of why those hours, and the hourly rates charged to Summit in connection with the Anti-SLAPP Motion, were reasonable. Overview of the Time Spent In Connection With The Anti-SLAPP Motion 3. All of the named Defendants filed and/or joined in each others Anti-
SLAPP Motions on February 1, 2011, in connection with which Defendants requested an award of attorneys fees as provided for by the applicable statute. On or about March 14, 2011, Plaintiff filed his opposition to the Anti-SLAPP Motion. Defendants filed and/or joined in reply briefs (including objections to Plaintiffs supporting declarations) on March 21, 2011. On March 28, 2011, the Court issued an order taking the scheduled motion hearing off-calendar. Then on March 29 and March 31, 2011, Plaintiff filed, respectively, evidentiary objections to the declaration submitted by Defendant Boal, and an opposition to the evidentiary objections that Defendants had filed with their reply briefs. By Minute Order dated July 22, 2011, the Court placed the hearing on the Anti-SLAPP Motion back on calendar for August 8, 2011.
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On August 4, 2011, the Court issued its tentative ruling on the Anti-SLAPP Motion, which was then argued as scheduled on August 8. Following the argument, Plaintiff filed (on August 13) a Supplemental Brief in further opposition to the Anti-SLAPP Motion. Defendants Boal and Bigelow responded to this brief on August 15; and Plaintiff filed a Sur-Reply Brief on September 29. The Courts October 13 Order
granted the Anti-SLAPP Motion in its entirety and awarded all Defendants their attorneys fees. 4. Summit was represented in connection with all of this activity by two
attorneys: associate Sally Wu and me. Ms. Wu expended a total of 25.5 hours, and I expended a total of 115.9 hours, engaged in the following activities relative to the Anti-SLAPP Motion, among others: investigating and researching the facts, circumstances and relevant defenses; preparing the Anti-SLAPP Motion, Notice of Joinder, supporting Declarations; reviewing and analyzing, and conducting legal research in connection with, Plaintiffs opposition to the Anti-SLAPP Motion; preparing a reply brief, a Notice of Joinder in the other Defendants reply briefs, and evidentiary objections; reviewing and analyzing Plaintiffs supplemental brief and strategizing with respect to what further Court filings, if any, were warranted; conferring with other Defendants counsel regarding strategy and other issues relating to the Anti-SLAPP Motion; analyzing the Courts tentative ruling on the Anti-SLAPP Motion; preparing for and attending the hearing on the Anti--SLAPP Motion; and reviewing the various post-hearing briefs submitted by other parties in connection with the Anti-SLAPP Motion (Summit neither submitted nor joined in any such posthearing briefs). 5. It might appear at first blush from the various court filings as though
Summit was responsible only for filing (i) a Notice of Joinder in connection with the Anti-SLAPP Motion filed by Defendants The Hurt Locker, LLC, Greg Shapiro, Nicholas Chartier, Voltage Pictures, LLC, Grosvenor Park Media, L.P. and Kingsgate Films, Inc. (collectively, the "Hurt Locker Defendants") and (ii) a subsequent reply
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brief. But in fact, the Hurt Locker Defendants motion was the product of a collaborative effort between counsel for the Hurt Locker Defendants and counsel for Summit. We worked together to prepare this motion so as to avoid duplication of effort as much as possible, and in order to avoid presenting the Court with separate and potentially redundant motions. Accordingly, Summits counsel was primarily responsible for drafting those portions of the Anti-SLAPP Motion filed by the Hurt Locker Defendants pertaining to Plaintiffs inability to demonstrate the probable validity of his claims (and reviewing and suggesting revisions to the remaining portions), while counsel for the Hurt Locker Defendants took primary responsibility for drafting the other portions of the motion (and reviewing and suggesting revisions to the portions of the motion that Summits counsel drafted). 6. In support of Summits request for an award of its attorneys fees and
recoverable costs, I have attached hereto as Exhibit 1 true and correct copies of Kattens invoices for this matter, which have been redacted to exclude privileged and work product information and information pertaining to work performed that was not related to the Anti-SLAPP Motion. Exhibit 1 supports Summits request for attorneys fees totaling $61,717.50, and costs (comprising PACER charges, Westlaw/Lexis research, courier charges, photocopying and transportation expenses) totaling $4,277.28). The Reasonableness of the Hourly Rates Charged 7. I was primarily responsible for defending this action on behalf of
Summit. I have been an attorney for nearly 30 years. I graduated magna cum laude from Georgetown University Law Center in 1982, where I was an Editor of the law schools international law journal. I was a Partner specializing in entertainmentrelated and intellectual property litigation at Troop Steuber Pasich Reddick & Tobey, LLP for 10 years (from 1990-2000) prior to becoming a partner at Katten in 2000. 8. I have substantial experience in intellectual property and entertainment
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litigation, having practiced in this area continuously for more than 25 years. In 2010,
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I was recognized as a Power Lawyer on The Hollywood Reporters list of the 100 most influential entertainment lawyers in the United States and was named one of Californias Top 75 Intellectual Property Litigators by the Los Angeles Daily Journal. I have been listed as a Southern California Super Lawyer for entertainment litigation in Los Angeles Magazine and Southern California Super Lawyers Magazine from 2004 through 2011. 9. My current hourly rate is $650 per hour; however, for purposed of this
action, I agreed to bill my time at the rate of $450 per hour. Accordingly, it is my belief that the hourly rates being charged for my time on this matter are substantially below those typically charged by attorneys with my years of experience and expertise, and are most certainly reasonable. 10. For purposes of this action, I also agreed that any work performed on this
matter by any associate (including Ms. Wu) would be billed at the blended rate of $375 per hour. Ms. Wu graduated from University of Southern California, Gould School of Law in 2009. Ms. Wu has assisted in the litigation of multiple cases, including the successful defense of a copyright infringement claim dismissed on summary judgment by the United States District Court, Southern District of New York (Latimore v. NBC Universal, Inc., case no. 07-cv-09338). Accordingly, it is my belief that this hourly rate is reasonable for Ms. Wu, and consistent with the hourly rates being charged in the Los Angeles legal community for attorneys at her level and with her experience.
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Case 2:10-cv-09034-JHN -JC Document 134-2 Filed 10/27/11 Page 1 of 43 Page ID #:1952
EXHIBIT 1
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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA SGT. JEFFREY S. SARVER, ) ) Plaintiff, ) ) vs. ) ) THE HURT LOCKER, LLC; MARK ) BOAL; KATHRYN BIGELOW; ) GREG SHAPIRO; NICOLAS ) CHARTIER; TONY MARK; DONALL) MCCLUSKER; SUMMIT ) ENTERTAINMENT, LLC; VOLTAGE ) PICTURES, LLC; GROSVENOR ) PARK MEDIA, LP; FIRST LIGHT ) PRODUCTIONS, INC.; KINGSGATE ) FILMS, INC. and PLAYBOY ) ENTERPRISES, INC., Jointly and ) Severally, ) ) Defendants. ) ) ) ) Case No. 2:10-cv-09034-JHN (JCx) [PROPOSED] ORDER GRANTING MOTION BY DEFENDANT SUMMIT ENTERTAINMENT, LLC FOR AWARD OF ATTORNEYS FEES Assigned to the Honorable Jacqueline H. Nguyen
ORDER GRANTING MOTION BY DEFENDANT SUMMIT ENTERTAINMENT, LLC FOR AWARD OF ATTORNEYS FEES
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ORDER The Court, having considered the Motion for Attorneys Fees filed by Defendant Summit Entertainment, LLC (Summit), as well as all supporting and opposing papers, and arguments with respect hereto, hereby rules as follows: 1. Summits Motion for Attorneys Fees pursuant to the Courts Order
entered October 13, 2011, Rule 54(d) of the Federal Rules of Civil Procedure, Local Rule 54-12, and California Code of Civil Procedure 425.16(c)(2) is GRANTED. 2. Plaintiff Sgt. Jeffrey S. Sarver shall pay Summit $___________ in
attorneys fees and $___________ in costs incurred in defense of this action and in connection with the special motion to strike, for a total payment of $____________.
IT IS SO ORDERED.
Dated: ________________, 2011
_________________________________ Hon. Jacqueline H. Nguyen UNITED STATES DISTRICT COURT
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ORDER GRANTING MOTION BY DEFENDANT SUMMIT ENTERTAINMENT, LLC FOR AWARD OF ATTORNEYS FEES

Motion3 Attys Fees SGT Sarver V Nicolas Chartier

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Case 2:10-cv-09034-JHN -JC Document 134

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MOTION FOR AWARD OF ATTORNEYS FEES BY SUMMIT ENTERTAINMENT, LLC

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Dated: ________________, 2011

_________________________________ Hon. Jacqueline H. Nguyen UNITED STATES DISTRICT COURT

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