Case 2:17-cv-05398-RSWL-AGR Document 425 Filed 05/09/22 Page 1 of 14 Page ID #:10403 'O' 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 CV17-5398-RSWL-AGRx 12 AECOM ENERGY & CONSTRUCTION, INC., ORDER re: 13 Plaintiff, PLAINTIFF’S 14 SUPPLEMENTAL BRIEFING v. 15 TO ESTABLISH ATTORNEYS’ FEES 16 GARY TOPOLEWSKI, et al., 17 Defendants. 18 Plaintiff AECOM Energy & Construction, Inc. 19 (“AECOM”) brought this Action for injunctive relief and 20 damages against Defendants Morrison Knudsen Corporation; 21 Morrison-Knudsen Company, Inc.; Morrison-Knudsen 22 Services, Inc.; Morrison-Knudsen International, Inc. 23 (collectively, “Corporate Defendants”); and Gary 24 Topolewski (“Defendant Topolewski”) (collectively, 25 “Defendants”). The Action arises out of Defendants’ 26 infringing use of the identity and goodwill of Morrison 27 Knudsen Corporation (“MK IP” or “MK brand”), which AECOM 28 1 Case 2:17-cv-05398-RSWL-AGR Document 425 Filed 05/09/22 Page 2 of 14 Page ID #:10404

1 owns the rights to. 2 Currently before the Court is a supplemental

3 briefing (“Supplement”) [419] filed by AECOM to 4 establish the amount of attorneys’ fees pursuant to this 5 Court’s Order granting AECOM’s Motion for Sanctions 6 [417]. AECOM seeks $387,902.40 in post-remand 7 attorneys’ fees in addition to $873,628.02 that was 8 previously awarded for the initial phase of this 9 litigation. Having reviewed all papers submitted 10 pertaining to the Supplement, the Court NOW FINDS AND 11 RULES AS FOLLOWS: the Court reduces AECOM’s post-remand 12 attorneys’ fees to $372,473.60 and affirms its previous 13 attorneys’ fees award of $873,628.02, thus awarding 14 AECOM a total of $1,246,101.62 in attorneys’ fees. 15 I. BACKGROUND 16 A. Factual Background 17 The facts underlying this Action are stated at 18 length in this Court’s previous Order granting AECOM’s 19 Motion for Summary Judgment and Permanent Injunction. 20 See generally Order re: Pl.’s Mot. for Summ. J., ECF 21 Nos. 242, 243. Moreover, the facts giving rise to this 22 Supplement are stated in this Court’s previous Order 23 granting AECOM’s Motion for Sanctions, where the Court 24 granted AECOM’s request for attorneys’ fees and costs 25 and ordered AECOM to provide supplemental briefing to 26 establish the amount of such fees and costs. See 27 generally Order re: Pl.’s Mot. for Sanctions, ECF No. 28 417. Because the facts are well-known to the parties, 2 Case 2:17-cv-05398-RSWL-AGR Document 425 Filed 05/09/22 Page 3 of 14 Page ID #:10405

1 the Court need not restate them here. 2 B. Procedural Background

3 On November 8, 2018, this Court granted [242, 243] 4 AECOM’s Motion for Summary Judgment against Defendants,1 5 finding willful infringement of the MK brand and 6 awarding AECOM $1,802,834,672 (“$1.8 billion”) in 7 damages.2 On February 21, 2019, Defendants filed a 8 Motion for Alteration, Amendment, or Reconsideration 9 [268] of the Court’s Order granting AECOM’s Motion for 10 Summary Judgment, which the Court denied [305] on April 11 24, 2019. Also on April 24, 2019, the Court granted 12 AECOM’s Motion to Set Attorneys’ Fees [262] and awarded 13 AECOM $873,628.02 in attorneys’ fees [305]. 14 Defendants appealed the $1.8 billion damages award, 15 which the Ninth Circuit reversed and remanded to this 16 Court [339] on March 24, 2021.3 Following remand, this 17 1 AECOM also named four additional individual defendants in 18 its Complaint: Bud Zulakoff, John Ripley, Todd Hale, and Henry 19 Blum (collectively, “Defaulting Defendants”). See generally Compl., ECF No. 1. On December 4, 2017, the court clerk entered 20 default as to these four individuals. See generally Default by Clerk. On November 9, 2018, AECOM filed a Motion for Default 21 Judgment against Defaulting Defendants. See generally Mot. for Default J., ECF No. 244. On January 24, 2019, the Court granted 22 AECOM’s motion, finding Defaulting Defendants jointly and 23 severally liable for AECOM’s damages. See generally Order re: Mot. for Default J. 24 2 The Court also granted AECOM’s request for a permanent injunction, ordering Defendants to cease their use of the MK IP, 25 and awarded AECOM its attorneys’ fees. See Order re: Pl.’s Mot. 26 for Summ. J. 45:5-55:8. 3 Defendants also argued on appeal that AECOM lacked Article 27 III standing, which the Ninth Circuit rejected. See Ninth Cir. 28 Mem. at 2-3, ECF No. 339. 3 Case 2:17-cv-05398-RSWL-AGR Document 425 Filed 05/09/22 Page 4 of 14 Page ID #:10406

1 Court reopened discovery on damages.

2 On December 16, 2021, Defendants filed Motions for

3 Summary Judgment [395, 396], arguing that AECOM could 4 not prove that Defendants profited from their 5 infringement scheme. On December 17, 2021, AECOM filed 6 a Motion for Sanctions [398], requesting evidentiary 7 sanctions, terminating sanctions, and monetary 8 sanctions. On February 24, 2022, this Court granted in 9 part and denied in part [417] AECOM’s Motion for 10 Sanctions and denied [417] Defendants’ Motions for 11 Summary Judgment. Specifically, this Court: (1) granted 12 AECOM’s request for evidentiary sanctions and deemed as 13 true that Defendants performed and collected on a $36 14 million construction contract; (2) granted AECOM’s 15 request for terminating sanctions and entered default 16 judgment against Defendants in the amount of $36 17 million; (3) denied AECOM’s requests for compensatory 18 and coercive sanctions; and (4) granted AECOM attorneys’ 19 fees and costs in an amount to be established by 20 supplemental briefing.4 On March 14, 2022, AECOM filed 21 the instant Supplement [419] and lodged its Proposed 22 Final Judgment [420]. On March 21, 2022, Defendant 23 Topolewski objected [422] to the Proposed Final 24 Judgment, taking issue with the requested attorneys’ 25 fees amount. 26 ///

27 4 The Court also bound Defaulting Defendants to this Order. 28 See generally Order re: Mot. for Sanctions, ECF No. 417. 4 Case 2:17-cv-05398-RSWL-AGR Document 425 Filed 05/09/22 Page 5 of 14 Page ID #:10407

1 II. DISCUSSION

2 A. Legal Standard

3 “Attorneys’ fees can be recovered only to the 4 extent they are reasonable.” SAS v. Sawabeh Info. 5 Servs. Co., No. CV1104147MMMMANX,

, at 6 *4 (C.D. Cal. June 22, 2015) (citing In re SNTL Corp.,

(9th Cir. 2009)). Courts routinely use 8 the lodestar method to determine the reasonableness of 9 attorneys’ fees. See Christensen v. Stevedoring Servs. 10 of Am.,

(9th Cir. 2009); City of 11 Burlington v. Dague,

(1992) (“[T]he 12 ‘lodestar’ figure has . . . become the guiding light of 13 [the court's] fee-shifting jurisprudence.”). The 14 lodestar figure is calculated by multiplying the hours 15 reasonably spent on the litigation by a reasonable 16 hourly rate. See, e.g., Gonzalez v. City of Maywood, 17

(9th Cir. 2013). 18 B. Discussion 19 AECOM seeks $387,902.40 in attorneys’ fees incurred 20 after remand from the Ninth Circuit, in addition to the 21 previous award of $873,628.02, for a total of 22 $1,261,530.42 in attorneys’ fees. Proposed Amen. Final

:7-14, ECF No. 420-1. Defendant Topolewski takes 24 issue with the requested fee award, objecting to both 25 the reasonableness of the hours expended by AECOM’s 26 counsel and the reasonableness of the rates charged. 27 See generally Topolewski Objections to Proposed Amen. 28 Final J. (“Topolewski Objs.”), ECF No. 422. The Court 5 Case 2:17-cv-05398-RSWL-AGR Document 425 Filed 05/09/22 Page 6 of 14 Page ID #:10408

1 examines the reasonableness of the hours expended by

2 AECOM’s counsel and the reasonableness of the rates

3 charged in turn below. 4 1. Reasonable Hours 5 Defendant Topolewski appears to argue that AECOM 6 cannot recover attorneys’ fees for time spent on the 7 unsuccessful stages of this litigation. See generally 8 Topolewski Objs. Namely, Defendant Topolewski argues 9 that AECOM cannot recover fees for certain work because: 10 (1) Magistrate Judge Rosenberg granted Defendant 11 Topolewski’s motion for protective order and therefore 12 prevented AECOM from compelling third-party discovery 13 regarding Defendant Topolewski; and (2) the Ninth 14 Circuit reversed AECOM’s $1.8 billion damages award. 15

Defendant Topolewski is mistaken, however. 16 AECOM can, indeed, recover attorneys’ fees for 17 hours spent on the stages of this litigation that were 18 not fruitful. Federal jurisprudence in this area is 19 clear, stating that plaintiffs may, and should, recover 20 attorneys’ fees for the unsuccessful stages of 21 litigation if those stages contributed to the ultimate 22 victory of the lawsuit. See Cabrales v. Cty. of Los 23 Angeles,

(9th Cir. 1991) (citing 24 Hensley v. Eckerhart,

(1983)) (“Rare, 25 indeed, is the litigant who doesn’t lose some skirmishes 26 on the way to winning the war. Lawsuits usually involve 27 many reasonably disputed issues and a lawyer who takes 28 on only those battles he is certain of winning is 6 Case 2:17-cv-05398-RSWL-AGR Document 425 Filed 05/09/22 Page 7 of 14 Page ID #:10409

1 probably not serving his client vigorously enough;

2 losing is part of winning.”); see also Hensley,

(“Where a plaintiff has obtained excellent 4 results, his attorney should recover a fully 5 compensatory fee . . . encompass[ing] all hours 6 reasonably expended on the litigation . . . . [T]he fee 7 award should not be reduced simply because the plaintiff 8 failed to prevail on every contention raised in the 9 lawsuit.”). 10 Though unsuccessful, AECOM’s efforts in litigating 11 the third-party subpoenas and the $1.8 billion damages 12 award were essential to its ultimate success in securing 13 terminating sanctions. The Court reminds Defendant 14 Topolewski that it is due to his collective failure with 15 Corporate Defendants to provide financial discovery that 16 AECOM had to litigate the $1.8 billion damages award, 17 serve third-party discovery requests, and move for 18 terminating sanctions in the first place. Yet, 19 unabashedly, Defendant Topolewski asks this Court to 20 carve out AECOM’s litigation failures in calculating the 21 attorney’s fees. The Court will do no such thing. 22 Cabrales,

(“[Defendant] would have us 23 scalpel out attorney’s fees for every setback, no matter 24 how temporary, regardless of its relationship to the 25 ultimate disposition of the case. This makes little 26 sense.”). 27 Accordingly, AECOM is entitled to attorneys’ fees 28 expended on the third-party discovery requests, 7 Case 2:17-cv-05398-RSWL-AGR Document 425 Filed 05/09/22 Page 8 of 14 Page ID #:10410

1 including time spent unsuccessfully opposing Defendant

2 Topolewksi’s Motion for Protective Order, and time spent

3 litigating the $1.8 billion damages award that was 4 ultimately overturned by the Ninth Circuit. See Pierce 5 v. Cty. of Orange,

(C.D. Cal. 6 2012) (citing Cabrales,

; O’Neal v. City 7 of Seattle,

, 1069 (9th Cir. 1995)) (“[T]ime 8 spent unsuccessfully opposing motions or requests on the 9 way to prevailing in a case may be compensable.”); see 10 also Cabrales,

(awarding attorneys’ 11 fees to plaintiff even though judgment was vacated by 12 the Supreme Court because plaintiff ultimately won her 13 case on remand). 14 To be clear, the Court notes that AECOM may only 15 recover attorneys’ fees for hours reasonably expended. 16 See Van Gerwen v. Guarantee Mut. Life Co.,

(9th Cir. 2000) (quoting Hensley, 461 U.S. at 18 434) (“A district court should exclude from the lodestar 19 amount hours that are not reasonably expended because 20 they are ‘excessive, redundant, or otherwise 21 unnecessary.’”). Looking at the billing statement 22 submitted by AECOM, the Court finds that the 5.7 hours 23 billed by legal assistants for trial preparation are 24 somewhat unreasonable. See Declaration of Yungmoon 25 Chang (“Chang Decl.”) 2:8, ECF No. 419-1. While some 26 trial preparation was necessary, including researching 27 the Court’s trial procedures and preparing the 28 stipulation to continue trial, the Court finds that such 8 Case 2:17-cv-05398-RSWL-AGR Document 425 Filed 05/09/22 Page 9 of 14 Page ID #:10411

1 work could have been completed in 3.7 hours.

2 Accordingly, the Court reduces the hours billed by legal

3 assistants for trial preparation by two hours. See 4 Gonzalez,

(noting that courts may 5 perform an “hour-by-hour analysis” of attorneys’ fees 6 requests and “exclude those hours for which it would be 7 unreasonable to compensate the prevailing party”). The 8 Court reduces these hours based on Senior Paralegal 9 Keith Catuara’s hourly rate because Mr. Catuara 10 performed most of the trial preparation work. The Court 11 otherwise finds that the hours expended on this 12 litigation post-remand by AECOM’s counsel are 13 reasonable. 14 2. Reasonable Rates 15 Reasonable hourly rates are calculated according to 16 the “prevailing market rates in the relevant legal 17 community for similar services by lawyers of reasonably 18 comparable skill, experience, and reputation.” Valentin 19 v. Grant Mercantile Agency, Inc.,

, at *9 20 (E.D. Cal. Dec. 27, 2017) (citing Blum v. Stenson, 465

, 895 (1984)). The relevant legal community is 22 the forum in which the district court sits. Carson v. 23 Billings Police Dep't,

(9th Cir. 24 2006). In determining whether rates are reasonable, 25 “[t]he Court [may] also draw[] on precedent from other 26 courts, its knowledge of the prevailing community rates, 27 and its evaluation of the quality of the work performed 28 by counsel. Toyo Tire & Rubber Co. Ltd v. Hong Kong 9 Case 2:17-cv-05398-RSWL-AGR Document 425 Filed 05/09/22 Page 10 of 14 Page ID #:10412

1 Tri-Ace Tire Co., No. SACV1400054CJCJPRX,

702851, at *3 (C.D. Cal. Jan. 24, 2018) (citation

3 omitted). 4 AECOM’s billing statement reflects that the 5 following hourly rates were charged in 2021: 6 7 Diana Torres (lead partner) $1,116/hour 8 9 Yungmoon Chang (senior associate) $876/hour 10 11 Maria Beltran (midlevel associate) $656/hour 12 13 Adrineh Shakelian (first year associate) $550/hour 14 15 Keith Catuara (senior paralegal) $396/hour 16 17 Thomas Ambrus (junior paralegal) $251/hour 18 19 Hector Alejandro (junior paralegal) $226/hour 20 21 While these rates have increased since the Court 22 last granted AECOM attorneys’ fees in 2018, they remain 23 within or minimally above market range. See Univ. 24 Elecs., Inc. v. Univ. Remote Control, Inc.,

3d 1331, 1337 (C.D. Cal. 2015) (noting intellectual 26 property partners at major law firms bill in the range 27 of $600 to $1,100 per hour); see also Perfect 10, Inc. 28 v. Giganews, Inc., No. CV 11-07098-AC SHX,

Case 2:17-cv-05398-RSWL-AGR Document 425 Filed 05/09/22 Page 11 of 14 Page ID #:10413

1 1746484, at *20 (C.D. Cal. Mar. 24, 2015) (noting that

2 attorney rates ranging from $390 to $1,002.96 per hour

3 and paralegal rates between $240 and $345 per hour were 4 reasonable for the Los Angeles area). As such, the 5 rates here are reasonable and the Court rejects 6 Defendant Topolewski’s unsupported and unpersuasive 7 arguments to the contrary. 8 3. Lodestar Calculation 9 As stated above, the Court reduces the hours billed 10 by legal assistants by two hours according to Mr. 11 Catuara’s hourly rate of $396/hour. The Court also 12 notes that there were several errors in the table 13 provided in the Chang Declaration where the amounts 14 charged did not correspond to the hours billed. See, 15 e.g., Chang Decl. 2:1-10 (stating that Diana Torres 16 charged $1505 for one hour of trial work, when Ms. 17 Torres’ fee is $1,116 per hour). After an extensive 18 analysis of the billing sheet submitted by AECOM’s 19 counsel, the accurate lodestar calculation is as 20 follows:5 21 22 /// 23 /// 24 /// 25 5 AECOM did not provide hourly rates for work done by Mark 26 Malone, Daniel Shin, La Tonya D., Stephanie Rosa, or Library Factual. See generally Ex. A (“Billing Statement”), ECF No. 419- 27 2. As such, the Court calculates their hourly rates based on the 28 billing statement submitted by AECOM’s counsel. See

11 Case 2:17-cv-05398-RSWL-AGR Document 425 Filed 05/09/22 Page 12 of 14 Page ID #:10414 1 Diana Torres 51.8 hours @ $1,116/hour 2 = $57,808.80 3 4 Yungmoon Chang 202.9 hours @ $876/hour 5 = $177,740.40 6 7 Maria Beltran 36.2 hours @ $656/hour 8 = $23,747.20 9 10 Adrineh Shakelian 106.1 hours @ $550/hour 11 = $58,335.00 12 13 Keith Catuara 117.5 hours – 2 hours = 14 115.5 hours @ $396/hour 15 = $45,738.00 16 17 Thomas Ambrus 11.1 hours @ $251/hour 18 = $2,786.10 19 20 Hector Alejandro 13 hours @ $226/hour 21 = $2,938.00 22 23 Mark Malone 1.8 hours @ $374/hour 24 = $673.20 25 26 Daniel Shin 0.5 hours @ $361/hour 27 = $180.50 28 12 Case 2:17-cv-05398-RSWL-AGR Document 425 Filed 05/09/22 Page 13 of 14 Page ID #:10415 1 La Tonya D. 4.6 hours @ $308/hour 2 = $1,416.80 3 4 Stephanie Rosa 1.7 hours @ $229/hour 5 = $389.30 6 7 Library Factual 2.1 hours @ $343/hour 8 = $720.30 9 10 TOTAL $372,473.60 11 12 Given the lodestar amount, the Court reduces the 13 post-remand attorneys’ fees sought by AECOM from 14 $387,902.40 to $372,473.60 and affirms its previous 15 attorneys’ fees award of $873,628.02, reflecting a total 16 of $1,246,101.62. 17 18 /// 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 13 Case 2:17-cv-05398-RSWL-AGR Document 425 Filed 05/09/22 Page 14 of 14 Page ID #:10416 1 III. CONCLUSION 2 Based on the foregoing, the Court awards AECOM

3 $372,473.60 in attorneys’ fees incurred after remand 4 from the Ninth Circuit. The Court also affirms its 5 previous attorneys’ fees award of $873,628.02. As such, 6 the cumulative total of attorneys’ fees awarded to AECOM 7 is $1,246,101.62. The Court will amend AECOM’s Proposed 8 Final Judgment to reflect as much. 9 10 11 IT IS SO ORDERED. 12 /s/ Ronald S.W. Lew 13 DATED: May 9, 2022 _____________________________ HONORABLE RONALD S.W. LEW 14 Senior U.S. District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14