Viahart, LLC v. Creative Kids Online, LLC, et al.

Background

Viahart, LLC alleged, among other things, that Creative Kids Online, LLC, Creative Kids Far East, Inc., Creative Kids Enterprises, LLC, and CK Online, LLC violated its trademark by selling a similar toy using the “Brain Flakes” trademark or confusingly similar marks.

During discovery, Viahart moved to compel more complete responses. On July 18, 2022, the court overruled defendants’ objections and ordered them to produce several categories of documents. Before trial, Viahart moved for sanctions under Federal Rule of Civil Procedure 37(b)(2)(A), alleging that defendants had failed to comply with that order. The court granted the sanctions motion and ordered defendants to pay Viahart’s reasonable expenses for briefing that motion and for Viahart’s efforts to compel production.

Viahart first sought attorney’s fees in June 2024. On February 27, 2025, the court denied that motion without prejudice because Viahart had not provided enough information about the billing professionals, had included fees not directly related to the discovery misconduct, and had used block billing that made the request difficult to evaluate. Viahart then filed a renewed motion seeking $24,730.88.

The parties’ arguments

Viahart submitted the credentials of the lawyers who billed time and records from four law firms. Its lead counsel, James H. Creedon, reviewed the billing records and reduced entries to estimate the portion related to the motion to compel and the sixth motion in limine. Viahart’s renewed request was substantially lower than its original request of $77,366.50.

Defendants argued that Viahart still had not provided enough information about the billing lawyers’ credentials and experience. They also argued that the work was not complex enough to justify the request and that Mr. Creedon’s percentage-based reductions were conclusory and unsupported by separate affidavits from every billing attorney.

Court’s analysis

The court applied a lodestar analysis, which generally calculates a reasonable fee by multiplying a reasonable hourly rate by a reasonable number of hours. The court found that the requested hourly rates were reasonable based on the lawyers’ experience, comparable rates in the district, the work involved, and the fact that Viahart had paid the rates. The court also held that separate affidavits from every billing attorney were not required because Viahart submitted contemporaneous time records for each lawyer and Mr. Creedon attested to their accuracy.

The court nevertheless found problems with the requested number of hours. Viahart had changed counsel several times, and the involvement of eight lawyers from four firms appeared to create some duplication. Many billing entries were vague, and 30 of the 42 entries were block billed—meaning that a single entry combined several different tasks. This prevented the court from fully determining how much time was spent on compensable work related to the discovery sanctions rather than on other matters.

Because of the staffing inefficiencies and imprecise billing, the court applied a ten-percent across-the-board reduction. It declined to impose a larger reduction because counsel had already removed or reduced many entries, and not all entries were block billed.

Disposition

The court awarded Viahart, LLC $22,257.79 in attorney’s fees, reducing the $24,730.88 request by ten percent. It directed the clerk to terminate the motion at Docket No. 302.