United States District Court, N.D. Texas, Dallas Division
MEMORANDUM OPINION AND ORDER
KINKEADE UNITED STATES DISTRICT JUDGE.
the Court is SAP America, Inc's Motion for Recovery of
Attorneys' Fees (Doc. No. 108). After careful
consideration of the motion, the response, the supporting
appendices, the applicable law, and any relevant portions of
the record, the Court DENIES the Motion.
America, Inc. (“SAP”) filed its motion for
recovery of attorney fees in response to the Court finding
this case exceptional, awarding recovery of attorney fees to
SAP, and authorizing SAP to submit its request for fees and
evidence supporting the requested fees. See
Memorandum Opinion and Order, ECF Doc. No. 102. In its motion
SAP requests an award of attorney fees in the amount of $614,
568.56. The Court denies SAP's request for fees because
SAP has failed to provide the Court with sufficient reliable
evidence to show that the requested fees are reasonable and
determining an award of attorney fees, a court must first
determine a lodestar, which is the reasonable hours expended
on the case multiplied by the reasonable hourly rates of the
individuals billing for that time. La. Power & Light
Co. v. Kellstrom, 50 F.3d 319, 324 (5th Cir.
1995). The court then accepts this lodestar amount or adjusts
the amount upward or downward depending on the circumstances
of the case. Id. The applicant for fees has the
burden of establishing entitlement to an award of fees,
documenting the appropriate hours expended, and the
appropriate billing rates. Id. The applicant for
fees can only meet this burden by presenting adequate
evidence to the court so that the court can determine what
hours and rates should be used to determine the lodestar.
Id. The court must not only determine whether or not
the total hours claimed are reasonable but must also
determine whether particular hours claimed were reasonably
expended. Id. at 325. Vague time entries and time
entries that do not illuminate the subject matter of what was
done do not assist a court in making a determination that the
claimed time was reasonably expended. Id. at 326.
Litigants take their chances when submitting such fee
applications. Id. at 327. To determine reasonable
rates, a court considers the attorneys' regular rates as
well as the prevailing rates in the area. Id. at
328. The applicant has the burden to show that rates used in
determining the lodestar are reasonable rates, which can be
shown through affidavits of the attorneys involved in the
case and through affidavits of other attorneys practicing in
the relevant area. Id. at 324; Tollett v. City
of Kemah, 285 F.3d 357, 368-69 (5th Cir. 2002).
support of its fee motion, SAP has submitted to the Court the
Declaration of Thomas M. Melsheimer, which has attached to it
time records and invoices for four law firms employed by SAP
in this litigation. In the Melsheimer declaration, Mr.
Melsheimer describes his role as lead counsel in this case,
describes his educational and legal background, and his
understanding of how a court should determine fee awards in
this circuit. Melsheimer Declaration at ¶ 1-5. Mr.
Melsheimer also asserts that he has reviewed the billing
rates of the attorneys involved and that these rates
represent the rates that are routinely charged to and paid by
these firm's clients. Melsheimer Declaration at ¶
8-11. Mr. Melsheimer states that a reasonable lodestar amount
for these fee and hours is $6337, 507.06, which he reduces by
$22, 938.50 to come to a total fee request of $612, 568.56.
Melsheimer Declaration at ¶ 6, 13. He asserts that this
amount is extremely reasonable for a patent litigation matter
such as this case. Melsheimer Declaration at ¶ 13.
the evidence provided in the Melsheimer Declration may be
some evidence as to the correct number of hours and correct
rates to use in determining a lodestar, the Court finds that
this evidence is insufficient. Beyond the general statements
that the lodestar, hours, and rates are reasonable, Mr.
Melsheimer does not provide any information to support these
conclusory statements. Mr. Melsheimer does not provide a
description of the number of hours and rates that he used to
determine his asserted lodestar. Instead, Mr. Melsheimer
simply concludes that this lodestar amount is reasonable. The
declaration is totally lacking as to any description of the
methodology used to calculate the asserted lodestar and how
Mr. Melsheimer came to this lodestar is not readily apparent
from the submitted invoices.
is insufficient evidence for the Court to determine the
reasonable number of hours to be used in determining the
lodestar. The Melsheimer declaration fails to assert the
total number of hours claimed. With the exception of the
reduction applied by Mr. Melsheimer for individuals who
worked less than 10 hours on this matter, he also fails to
explain if all other time included on the invoices is
included in his lodestar and was time that was reasonably
expended on this matter. Without such evidence, the Court is
unable to calculate a lodestar.
the Court notes that upon review of the submitted invoices,
many of the time entries are too vague for the Court to
determine if this time was reasonably expended on this
matter. For example, after redaction some time entries read:
“Research re a XXXXXX”; “Research
applicability of XXXXXX”; Attention to XXXXXX”;
and “Confer with team re XXXXXX”. Entries like
these are so vague that the Court cannot make a determination
that the time claimed was reasonably expended. In certain
situations, it might be appropriate for a Court to reduce a
lodestar to account for vague entries like this. La.
Power & Light Co. v. Kellstrom, 50 F.3d 319, 324
(5th Cir. 1995). This is not one of those
situations because the Court does not know if Mr.
Melsheimer's conclusory lodestar includes the time for
these entries or if it does not.
Court also agrees with Investpic's assertion that the
method of redacting time entries creates questionability as
to the credibility of the time entries on the invoices. In
some instances redaction was done using blackout redaction
and in other instances redaction was done using white out
redactions. This is not unusual when multiple people are
working on one project and the Court is not persuaded that
this necessarily makes the time entries questionable. What is
concerning is that on some invoices it appears that entire
entries might have been entirely redacted, which is indicated
by large uneven white spaces between the time entries that
are presented. See Melsheimer Declaration ECF Nos.
109 at 92, 96, 104, 114. While there may be valid explanation
as to these white spaces, the explanation has not been
provided to the Court as to how this was accounted for, if it
was, in the determination of Mr. Melsheimer's asserted
lodestar and how this would relate to the total time and
charge presented on these invoices.
is also insufficient evidence for the Court to make a
determination of the reasonableness of the rates charged by
the various people who worked on this matter. The Melsheimer
Declaration provides information about Mr. Melsheimer's
qualifications and experience. This is some indication of
what his reasonable hourly rate should be. This is not an
indication of what the reasonable rate for all the other
individuals involved should be. In his declaration, Mr.
Melsheimer is silent as to the background and experience of
any of these other people who spent time on this case and
what their reasonable rate should be based on that background
and experience. Mr. Melsheimer does not even refer to having
any particular knowledge of this information or as to the
person's role in the matter. This information is also not
readily apparent from the submitted invoices. For example,
the Winston & Strawn invoices list hourly rates for the
people with time entries, which range from $200.00 per hour
to 1, 100.00 per hour, but they do not give any indication as
to if those people are partners, associates, paralegals, or
other support staff. Melsheimer Declaration ECF No. 109 at
11-53. The Fish & Richardson invoices suffer from the
same problem. Melsheimer Declaration ECF No. 109 at 55-111.
The Paul Weiss invoices, on the other hand, suffer from the
opposite problem. These invoices identify the roles of the
people who worked on the matter, but they do not provide the
hourly rates charged by these people. Melsheimer Declaration
ECF No. 109 at 113-127. Without further evidence, the Court
is unable to determine the reasonableness of the rates
charged in this matter.
SAP has failed to provide necessary supporting evidence as to
the reasonable amount of time and the reasonable rates to be
used in a determination of the lodestar, the Court
DENIES the motion without prejudice. If SAP
chooses to refile its motion for attorneys' fees, any
such motion must be filed within twenty (20) days
from the date this Order is signed. Any response
must be filed within fifteen (15) of the motion being filed.
No. reply will be allowed.