United States District Court, W.D. Oklahoma
TIMOTHY D. DEGIUSTI, UNITED STATES DISTRICT JUDGE.
matter comes before the Court on Plaintiff's Motion for
Attorney's Fees and Costs [Doc. No. 24]. Defendant has
not responded to the Motion. Although Defendant's failure
to respond renders Plaintiff's Motion confessed,
attorney's fees in copyright cases are discretionary and
the Court has an independent obligation to determine
Plaintiff's entitlement to, and the amount of, any award.
See 17 U.S.C. § 505 (“In any civil action
under this title, the court in its discretion may allow the
recovery of full costs ... [and] award a reasonable
attorney's fee to the prevailing party as part of
costs.”); Fogerty v. Fantasy, Inc., 510 U.S.
517, 533 (1994) (“The automatic awarding of
attorney's fees to the prevailing party [under §
505] would pretermit the exercise of that
discretion.”); Kirtsaeng v. John Wiley & Sons,
Inc., __ U.S. __, 136 S.Ct. 1979, 1985, 195 L.Ed.2d 368
(2016) (“[A] district court may not ‘award
attorney's fees [under § 505] as a matter of
course'; rather, a court must make a more particularized,
case-by-case assessment.”) (quoting Fogerty,
510 U.S. at 533).
January 28, 2016, Plaintiff filed the present action alleging
it held, by assignment, valid copyrights in thirty-one
separate publications created by Audle Allison, and Defendant
willfully infringed such work by publishing and selling three
books containing copyrighted material found in four of the
works. Defendant was personally served with the Summons and
Complaint on August 25, 2016. Defendant did not answer or
respond to the Complaint. On October 7, 2016, the Court Clerk
entered default against Defendant for failing to plead or
otherwise defend the present action, and on February 10,
2017, the Court entered default judgment. See Order,
Feb. 10, 2017 (“Order”) [Doc. No. 13]. The Court
awarded statutory damages totaling $80, 000 and entered an
injunction, which, generally, enjoined Defendant from further
infringing upon Plaintiff's copyrighted
See id.; Default Judgment [Doc. No. 14].
noted above, the prevailing party in a copyright infringement
case may recover costs and attorney's fees.
Fogerty, 510 U.S. at 534; Wood v. Cendant
Corp., 504 F.Supp.2d 1174, 1176 (N.D. Okla.
“There is no precise rule or formula for determining
whether fees should be awarded, but the Supreme Court and
Tenth Circuit have suggested consideration of the following
nonexclusive factors: (1) frivolousness of [the] losing
party's case; (2) improper or bad faith motivation of the
losing party; (3) objective unreasonableness of [the] losing
party's case (factual and legal components); and (4) the
need in particular circumstances to advance considerations of
compensation and deterrence.” Id. (citing
Fogerty, 510 U.S. at 535 n. 19; Palladium Music,
Inc. v. EatSleepMusic, Inc., 398 F.3d 1193, 1200 (10th
Cir. 2005)). “An award of attorney fees serves to
‘penalize the losing party, to deter continuing
infringement, to make the prevailing party whole, and to
encourage the proper prosecution of copyright
infringements.'” Broadcast Music, Inc. v.
Cleatz Bar and Grill, LLC, No. 12-cv-321, 2013 WL
753468, at *1 (D. Colo. Feb. 27, 2013) (citation omitted).
Court finds Plaintiff is entitled to an award of
attorney's fees. By failing to answer or otherwise defend
this case, Defendant admitted the Complaint's
well-pleaded facts and forfeited her ability to contest those
facts. See Tripodi v. Welch, 810 F.3d 761, 765 (10th
Cir. 2016); United States v. Craighead, 176
F.App'x 922, 924 (10th Cir. 2006) (unpublished). In
granting Plaintiff's Motion, the Court found the
uncontested facts constituted a legitimate cause of action
for copyright infringement. Order at 5-6. The Court further
[I]t is evident from the limited record before the Court that
entry of default judgment against Defendant is appropriate.
First, the evidence suggests that Plaintiff has suffered
quantifiable harm, and that it will continue to do so absent
the entry of default judgment. Plaintiff would also be denied
the right to judicial resolution of the claims presented, and
would be without other recourse for recovery absent the entry
of a default judgment. There is nothing in the record to
suggest that Defendant has a triable defense as to liability;
specifically, there is no evidence of a legitimate
contractual dispute between the parties. Likewise, there is
nothing in the record to suggest that the property at issue
was unprotected by the copyright laws. The Summons served
upon Defendant warned her that failing to respond to the
Complaint would result in judgment by default. Given
Defendant's refusal to appear or otherwise defend this
action, the Court finds lesser sanctions would be
at 7. Thus, based on the Court's findings in the record,
Defendant deliberately and knowingly infringed upon
Plaintiff's copyrights; subsequent to such infringement,
Defendant forced Plaintiff to retain lawyers and to resort to
the courts to enforce its proprietary interests in the
copyrights. Defendant has come forward with no justification
for her actions, and has no colorable grounds for a defense.
Accordingly, applying the foregoing factors governing
attorney's fee awards, the Court finds an award of fees
is appropriate. See Girlsongs, 625 F.Supp.2d at 1132
(citing Milene Music, Inc. v. Gotauco, 551 F.Supp.
1288, 1298 (D.R.I. 1982)).
determining reasonable attorney's fees, the starting
point for determining the amount of a reasonable fee is the
“lodestar” figure - “the number of hours
reasonably expended on the litigation multiplied by a
reasonable hourly rate.” Anchondo v. Anderson,
Crenshaw & Assocs., LLC, 616 F.3d 1098, 1102 (10th
Cir. 2010) (citing Hensley v. Eckerhart, 461 U.S.
424 (1983)). If a party is seeking compensation for services
of a non-lawyer, such as a legal assistant, the Court must
scrutinize the reported hours and suggested rates in the same
manner. Case v. Unified School Dist. No. 233, 157
F.3d 1243, 1249 (10th Cir. 1998). The party seeking an award
of fees has the burden of proving both the number of hours
spent and reasonableness of the hourly rates. United
Phosphorus, Ltd. v. Midland Fumigant, Inc., 205 F.3d
1219, 1233 (10th Cir. 2000). Once this burden is met, a
claimant is entitled to the presumption this lodestar amount
reflects a “reasonable” fee. Robinson v. City
of Edmond, 160 F.3d 1275, 1281 (10th Cir. 1998).
the Court determines the lodestar, it must then determine
whether any upward or downward adjustments should be made to
the lodestar “to account for the particularities of the
suit and its outcome.” Zinna v. Congrove, 680
F.3d 1236, 1242 (10th Cir. 2012) (citation omitted). In
assessing whether adjustments should be made, courts often
consider the twelve factors set out in Johnson v.
Georgia Highway Express, Inc., which include:
(1) the time and labor required; (2) the novelty and
difficulty of the questions; (3) the skill required; (4)
preclusion of other employment; (5) the customary fee in the
community; (6) whether the fee is fixed or contingent; (7)
time limitations imposed by the client; (8) the amount
involved and the results obtained; (9) the experience,
reputation and ability of the attorneys; (10) the
undesirability of the case; (11) the nature and relationship
of the professional relationship with the client; and (12)
awards in similar cases.
F.2d 714, 717-19 (5th Cir. 1974). The Tenth Circuit has
approved these factors for determining reasonableness.
Brown v. Phillips Petro. Co., 838 F.2d 451 (10th
Cir. 1988). It is rare that all factors are met. Uselton
v. Commercial Lovelace Motor Freight, Inc., 9
F.3d 849, 853 (10th Cir. 1993). Although these factors may be
considered, the court does not need to consider “the
factors [ ] subsumed within the initial calculation of hours
reasonably expended at a reasonable hourly rate.”
Hensley, 461 U.S. at 434 n. 9. The lodestar
calculation is meant to be the primary consideration when
awarding fees rather than the Johnson factors.
Anchondo, 616 F.3d at 1103 (citing Perdue v.
Kenny A ex rel. Winn, 559 U.S. 542 (2010)).
seeks $35, 351.75 in attorney's fees and costs in the
amount of $911.91, for a total of $36, 263.66. In support,
Plaintiff submits time records showing its attorneys and
legal assistants spent 147 hours working on this matter. Mr.
Martin G. Ozinga was the primary attorney in the matter, and
he submitted records showing 47.25 hours spent litigating the
present case. Ms. Jennifer Miller and Mr. Cody Cooper, the
other attorneys in this matter, submitted records showing
they spent 86.40 hours and 2.10 hours, respectively. Ms. Lisa
McAlister, the firm's paralegal, spent 8.50 hours working
on the case.
review, counsel's time records describe with
particularity the tasks performed and time spent on them. The
Court has examined the fee statement for duplication of
services, excessive time billing for particular tasks, use of
too many attorneys, unnecessary performance of clerical tasks
by lawyers, other work deemed unnecessary or irrelevant, and
finds minimal reduction is required. Specifically, the Court
finds that hours spent on obtaining affidavits from Larry
Wilhelm and John Singleton, and court proceedings regarding
Plaintiff's process server, were not central to the
issues in this case. Accordingly, in this regard, the Court
will reduce Ozinga's hours by 1.25 and Miller's hours
by 2.7. Second, the Court finds that certain items performed
by counsel were clerical in nature (finalizing and filing
pleadings, and communications with the process server) and
should be deducted. Accordingly, in this regard, the Court