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Christ Center of Divine Philosophy, Inc. v. Elam

United States District Court, W.D. Oklahoma

September 21, 2017

CHRIST CENTER OF DIVINE PHILOSOPHY, INC., Plaintiff,
v.
ELLEN VERONICA ELAM, Defendant.

          ORDER

          TIMOTHY D. DEGIUSTI, UNITED STATES DISTRICT JUDGE.

         This 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, [1] 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).

         BACKGROUND

         On 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 works.[2] See id.; Default Judgment [Doc. No. 14].

         DISCUSSION

         As 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. 2007).[3] “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).

         I

         The 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 found:

[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 ineffective.

         Order 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)).

         II

         In 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).

         Once 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.

         488 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)).

         Plaintiff 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.

         Upon 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 ...


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