Free Motion for Attorney Fees - District Court of Arizona - Arizona

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MESCHKOW & GRESHAM, P.L.C.

Jordan M. Meschkow (AZ Bar No. 007454) Lowell W. Gresham (AZ Bar No. 009702) 5727 North Seventh Street Suite 409 Phoenix, Arizona 85014-5818 (602) 274-6996 (602) 274-6970 (facsimile) Attorneys for Plaintiff

GILES LEGAL, P.L.C.

Nancy R. Giles (AZ Bar No. 020163) 733 West Willetta Street Phoenix, Arizona 85007 (602) 252-1788 Attorney for Plaintiff

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA DAN COOGAN, doing business as COOGAN PHOTOGRAPHIC, Plaintiff, v. AVNET, INC., et al., Defendants. Pursuant to authority of Title 17 United States Code § 505, Rule 54(d)(2)(B), FED. R. CIV. P. and Local Rule 54.2, Plaintiff hereby moves the Court for an Order that Avnet, Inc. ("Avnet") is liable to Dan Coogan for his reasonable attorneys' fees and related nontaxable expenses incurred in connection with this matter, and for an Order that the reasonable attorneys' fees and related nontaxable expenses in this matter are at least $518,503.15, or whatever sum the Court determines is reasonable. Grounds for Motion As a to-be-filed Memorandum of Points and Authorities will show, attorneys' fees at least in the amount of $397,323.15 and non-taxable expenses in the amount of
Case 2:04-cv-00621-SRB 8050-0131-0301060505-1 Document 288 1 Filed 09/06/2006 Page 1 of 4

Case No.: CV-04-0621 PHX SRB

PLAINTIFF DAN COOGAN'S POST-JUDGMENT MOTION FOR ATTORNEYS' FEES AND NONTAXABLE EXPENSES

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$121,180 are properly awarded in this case for the following reasons: 1. Judgment on the merits was entered in this matter on August 23, 2006 in

favor of Plaintiff after a five-day bench trial. 2. As more fully explained in the Memorandum of Points and Authorities to

be filed after this Motion in accordance with the Federal and Local Rules, Plaintiff is entitled to an award of his reasonable attorneys' fees and "full costs" in this matter under the provisions of 17 U.S.C. §505, which allows the Plaintiff, as the prevailing party, to recover his "full costs" and "reasonable attorney's fee" "as part of the costs." Further, Plaintiff prevailed on "all significant issues" in this case and is, without question, the prevailing party in this lawsuit. See Cable/Home Communication Corp. v. Network Productions, Inc., 902 F.2d 829, 853 (11th Cir. 1990) ("the prevailing party under the attorneys' fee authorization of section 505 of the Copyright Act is identified as the party succeeding on a significant, litigated issue that achieves some of the benefits sought by that party in initiating the suit. Warner Bros. 1 , 877 F.2d at 1126; see Hensley v. Eckerhart, 461 U.S. 424, 429, 433, 103 S. Ct. 1933, 1937, 1939, 76 L. Ed. 2d 40 (1983); Hartman v. Hallmark Cards, Inc., 833 F.2d 117, 122 (8th Cir. 1987))") (emphasis added). Plaintiff certainly meets this definition. 3. As more fully explained in the Memorandum of Points and Authorities to

be filed after this Motion, Plaintiff, the prevailing party, also should be awarded his full costs and attorneys' fees to the prevailing Plaintiff as part of the costs, as sanctions, because Avnet, Inc. ("Avnet") and its counsel has caused the Court to spend five days of trial to come to a $100,000 damage award, when such amount plus lower costs and attorneys' fees were offered by Plaintiff to Avnet at the beginning of litigation and months before trial (while Avnet refused even to meet to discuss settlement and caused all extensions in it), showing Avnet's bias and prejudice to unduly delay and prejudice Plaintiff and this entire matter. Moreover, Avnet's counsel also offered the adjudicated amount in a range from $20,000 to $100,000 in July 2004 before Plaintiff incurred major
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Case 2:04-cv-00621-SRB 8050-0131-0301060505-1

Warner Bros., Inc. v. Dae Rim Trading, Inc., 877 F.2d 1120, 1128 (2d Cir. 1989). Document 288 Filed 09/06/2006 Page 2 of 4 2

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costs and fees, but when confronted with minor attorney fees then, never contacted Plaintiff's counsel with this again. Additionally, Plaintiff offered almost exactly the adjudicated amount to Avnet in March 2004 before this case was filed, and Avnet refused such offer relying on the same $1,600 charges it showed at trial. 4. As more fully explained in the Memorandum of Points and Authorities to

be filed after this Motion, lead counsel for Plaintiff, on contingent fee, has over 1,000 hours invested in this case at his usual litigation hourly rate of $350, and the other associate lawyer pursuant to a separate fee agreement has charged Plaintiff, $47,323.15 at $85.00 an hour. 5. As more fully explained in the Memorandum of Points and Authorities to

be filed after this Motion, Plaintiff's nontaxable expenses in this matter exceed $120,000 (the taxable costs having been submitted separately via Plaintiff's Bill of Costs). They were under $2,000 by the September 2004 Scheduling Conference and $45,000 before this Court's October 2005 order, and during overtures of settlement thereafter. Plaintiff incurred higher costs by Avnet's refusing to settle and unnecessarily bringing this matter to trial. III. CONCLUSION For the foregoing reasons, Plaintiff respectfully requests that the Court award Plaintiff his full costs and attorneys' fees incurred in litigating this action, in the total amount of at least $518,503.15. This Motion will be supported by a Memorandum, to be filed by the due date of October 23, 2006, pursuant to Local Rule 54.2. Respectfully submitted this 6th day of September, 2006, s/Jordan M. Meschkow Jordan M. Meschkow MESCHKOW & GRESHAM, P.L.C. 5727 North Seventh Street Suite 409 Phoenix, Arizona 85014 ATTORNEYS FOR PLAINTIFF

Nancy R. Giles GILES LEGAL, P.L.C. 733 West Willetta Street Phoenix, Arizona 85007 ATTORNEY FOR PLAINTIFF

Case 2:04-cv-00621-SRB 8050-0131-0301060505-1

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Case 2:04-cv-00621-SRB 8050-0131-0301060505-1

CERTIFICATE OF SERVICE I hereby certify that on September 6, 2006 I electronically transmitted the attached document to the Clerk's Office using the ECF System for filing and transmittal of a Notice of Electronic Filing to the following ECF registrants: Jordan Green FENNEMORE CRAIG 3003 North Central Avenue, Suite 2600 Phoenix, Arizona 85012-2913 Attorneys for Defendants and Nancy R. Giles GILES LEGAL, P.L.C. 733 West Willetta Street Phoenix, Arizona 85007 Attorney for Plaintiff

/s Jordan M. Meschkow

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