1 2
3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 8 AT SEATTLE
9 10 PROMEDEV, LLC, CASE NO. C22-1063JLR 11 Plaintiff, ORDER v. 12 ROBY WILSON, et al., 13 Defendants. 14
15 I. INTRODUCTION 16 Before the court are competing motions for attorneys’ fees filed by Plaintiff 17 Promedev, LLC (“Promedev”) and Defendants Roby Wilson, MaXXiMedia Advertising 18 Co. (“MaXXiMedia”), and Imagipix Corporation (together, “Defendants”). (Pl. Mot. 19 (Dkt. # 123); Defs. Mot. (Dkt. # 126); see Pl. Reply (Dkt. # 135); Defs. Reply (Dkt. 20 # 136).) Each side opposes the other side’s motion. (See Pl. Resp. (Dkt. # 132); Defs. 21 Resp. (Dkt. # 129).) The court has considered the motions, the parties’ submissions, the 22 1 relevant portions of the record, and the governing law. Being fully advised,1 the court 2 GRANTS in part and DENIES in part Promedev’s motion and DENIES Defendants’
3 motion. 4 II. BACKGROUND 5 The court set forth the factual background of this matter in detail in its April 1, 6 2024 order granting in part and denying in part the parties’ motions for summary 7 judgment. (4/1/24 Order (Dkt. # 93) at 2-7.) The court assumes that the reader is 8 familiar with that order, and thus focuses here on the background relevant to the parties’
9 motions for attorneys’ fees and costs. 10 This action arose from a July 2020 agreement (the “Agreement”) between 11 Promedev and MaXXiMedia under which Promedev agreed to pay MaXXiMedia a 12 monthly commission in exchange for MaXXiMedia’s advertising services. (1/18/24 13 Wilson Decl. (Dkt. # 58) ¶ 8, Ex. A (“Agreement”).) The Agreement provides, in
14 relevant part, for an award of attorneys’ fees and costs to the “prevailing party”: 15 14. Attorneys’ Fees. In the event that the services of an attorney are required or legal action is taken to enforce the terms of this Agreement by 16 either party, or to protect those rights provided by this contract or by law, the prevailing party shall be entitled to an award of actual attorney’s fees, costs, 17 and expenses reasonably expended.
18 (Agreement ¶ 14.) 19 20
21 1 Neither party requests oral argument (see Pl. Mot. at 1; Pl. Resp. at 1; Defs. Mot. at 1; Defs. Resp. at 1) and the court concludes that oral argument would not be helpful to its 22 disposition of these motions, see Local Rules W.D. Wash. LCR 7(b)(4). 1 On July 1, 2022, Promedev notified MaXXiMedia of its intent to terminate the 2 Agreement 60 days later, on August 31, 2022, consistent with paragraph 13 of the
3 Agreement. (See 4/1/24 Order at 4 (discussing the termination of the Agreement).) 4 Promedev included with its notice a proposed termination agreement that would confirm 5 its remaining payment obligations and its right to ownership of “creative product” 6 produced during the term of the Agreement. (See id.) This triggered “a flurry of 7 correspondence from MaXXiMedia,” including a “Notice of Breach of Contract” and 8 demands for additional payment of millions of dollars for “creative product,” “work
9 product,” a “lifetime non-compete and non-disparagement agreement,” and 10 miscellaneous expenses, some of which predated the Agreement. (See id. at 4-6.) 11 Promedev did not pay the additional amounts MaXXiMedia demanded. (See id. at 12 6-7.) It filed this case on July 29, 2022, while the issues of payment and creative product 13 ownership were still unresolved. (See id. at 7; see also Compl. (Dkt. # 1).) Promedev
14 alleged claims against Defendants for breach of contract, breach of the implied covenant 15 of good faith and fair dealing, breach of fiduciary duty, “civil coercion, extortion, and 16 blackmail,” and a declaratory judgment determining: 17 a. Promedev has complied with its obligations under, and is not in breach of, the Agreement. 18 b. Promedev’s obligations as it relates to commissions after August 31, 2022. 19 c. Promedev’s obligations with regard to the Production Expenses not directly related to the production of specific commercials. 20 d. Promedev has no obligation to pay for any Creative Product. e. Promedev is the owner of all of the alleged Creative Product, 21 including all of its commercials and the elements of those commercials, and any copyright registrations filed by [Defendants] 22 are invalid and should be canceled. 1 f. Promedev has not obligation to pay for any Work Product. g. Promedev has no obligation to pay for Non-Compete and/or 2 Non-Disparagement.
3 (See id. ¶¶ 58-88.) By September 2022, Promedev paid MaXXiMedia commissions 4 owed through December 2022 and most of Mr. Wilson’s invoiced expenses. (See 4/1/24 5 Order at 6.) It did not, however, pay the additional sums MaXXiMedia demanded for 6 creative product, work product, or a non-compete/non-disparagement agreement. (See id. 7 at 6-7.) 8 On October 25, 2022, Defendants filed an answer and affirmative defenses, along 9 with counterclaims on behalf of MaXXiMedia for breach of contract, breach of the 10 implied covenant of good faith and fair dealing, copyright infringement, trade secret 11 misappropriation in violation of state and federal law, violation of the Washington 12 Consumer Protection Act (“WCPA”), and “fraudulent inducement and fraudulent 13 misrepresentation.” (Ans. (Dkt. # 18) at 17-27, ¶¶ 22-55.) MaXXiMedia amended its
14 counterclaims on December 23, 2022, in response to Promedev’s first motion to dismiss. 15 (See generally 1st MTD (Dkt. # 23); Am. Counterclaims (Dkt. # 25).) 16 On March 2, 2023, the court granted in part and denied in part Promedev’s 17 renewed motion to dismiss certain of MaXXiMedia’s counterclaims. (3/2/23 Order (Dkt. 18 # 40).) In relevant part, the court dismissed MaXXiMedia’s claims for violation of the
19 WCPA and for fraudulent inducement and fraudulent misrepresentation, and denied 20 Promedev’s motions to dismiss MaXXiMedia’s trade secret misappropriation claims and 21 to strike MaXXiMedia’s request for the remedy of disgorgement of profits. (See id. at 22 22.) MaXXiMedia did not further amend its counterclaims. (See generally Dkt.) 1 Promedev filed an amended complaint on November 8, 2023. (Am. Compl. (Dkt. 2 # 54); see 11/3/23 Order (Dkt. # 53) (granting Promedev’s unopposed motion for leave to
3 amend).) Promedev voluntarily dropped its breach of fiduciary duty claim and removed 4 Mr. Wilson’s name from the heading of its breach of contract claim. (See Am. Compl. 5 ¶¶ 64-85.) It also made minor revisions to its declaratory judgment claim. (Compare id. 6 ¶ 84, with Compl. ¶ 87.) 7 On January 18, 2024, Defendants moved for summary judgment on all of 8 Promedev’s claims. (Defs. MSJ (Dkt. # 56).) Promedev filed its own motion for
9 summary judgment on all of MaXXiMedia’s counterclaims on February 8, 2024. (Pl. 10 MSJ (Dkt. # 72).) Neither party moved for summary judgment on its own claims. (See 11 generally id.; Defs. MSJ.) 12 On April 1, 2024, the court granted in part and denied in part each of the parties’ 13 motions. (See generally 4/1/24 Order.) The court granted in part Promedev’s motion for
14 summary judgment on MaXXiMedia’s breach of contract counterclaim and granted in 15 full Promedev’s motion for summary judgment on MaXXiMedia’s counterclaims for 16 breach of the implied covenant of good faith and fair dealing, trade secret 17 misappropriation, and copyright infringement. (See id. at 35.) As a result, only 18 MaXXiMedia’s counterclaim that Promedev breached the Agreement by disclosing
19 billing rates to third parties remained at play. (See id.) The court granted Defendants’ 20 motion for summary judgment on Promedev’s “civil coercion, extortion, or blackmail” 21 claim and denied their motion for summary judgment on Promedev’s claims for breach of 22 contract and of the implied covenant of good faith and fair dealing. (Id.) The court also 1 ordered (1) Promedev to show cause why the court should not grant Defendants summary 2 judgment on its breach of contract claim for failure to identify the contract terms
3 Defendants allegedly breached and to show that the breach caused it harm and 4 (2) Defendants to show cause why the court should not impose Rule 11 sanctions for 5 maintaining a frivolous copyright infringement claim. (Id.; see also id. at 21-22 6 (discussing Promedev’s breach of contract claim), 24-28 (discussing Defendants’ 7 copyright infringement claim).) 8 Promedev moved for reconsideration of the court’s partial denial of its motion for
9 summary judgment on MaXXiMedia’s breach of contract counterclaim, arguing that 10 MaXXiMedia had failed to identify any cognizable damages arising from any alleged 11 disclosure of billing rates. (See generally MFR (Dkt. # 94); see also 4/4/24 Order (Dkt. 12 # 94) (ordering Defendants to respond with evidence of damages caused by Promedev’s 13 alleged breach of confidentiality).) After briefing on the orders to show cause and the
14 motion for reconsideration were complete, the court (1) ordered Defendants’ attorneys to 15 pay a fine of $15,500 as Rule 11(b) sanctions for maintaining the copyright infringement 16 counterclaim; (2) granted Promedev’s motion for reconsideration and dismissed 17 MaXXiMedia’s breach of contract counterclaim with prejudice for failure to demonstrate 18 that it suffered damages; and (3) ordered Promedev to show cause why it should not grant
19 summary judgment in Defendants’ favor on Promedev’s breach of contract claim for 20 failure to establish recoverable damages. (See generally 4/11/24 Order (Dkt. # 110); 21 4/12/24 MFR Order (Dkt. # 111); 4/12/24 OSC (Dkt. # 112).) On April 18, 2024, the 22 court granted summary judgment in favor of Defendants on Promedev’s breach of 1 contract claim. (4/18/24 Order (Dkt. # 117).) As a result, only Promedev’s claims for 2 breach of the implied covenant of good faith and fair dealing and for declaratory
3 judgment remained for trial. 4 On April 19, 2024—less than three weeks before the May 7, 2024 trial date (see 5 2/12/24 Sched. Order (Dkt. # 80)), the parties moved for an order striking the remaining 6 pretrial deadlines and setting a schedule to resolve any remaining issues in the case (see 7 generally 4/19/23 Stip. (Dkt. # 118)). The parties represented that they agreed that the 8 trial was “no longer necessary” and that “no appellate rights are waived by submission of
9 this stipulation.” (Id. at 1.) The court granted the motion and ordered the parties to file, 10 in accordance with their stipulation, 11 a proposed judgment as to all claims, including the claims already resolved by the Court and Promedev’s remaining claim for declaratory judgment 12 (addressing, inter alia, ownership of the creative works and registered copyrights), and which shall be consistent with the Court’s prior rulings. 13 (4/19/24 Order (Dkt. # 119) at 3.) The parties filed their proposed judgment on April 26, 14 2024, along with a joint brief setting forth the parties’ positions regarding the scope of the 15 creative product to which Promedev was entitled. (See 4/26/24 Stip. (Dkt. # 121); see 16 also Prop. Judgment (Dkt. # 121-1) (highlighting the disputed language).) 17 On May 30, 2024, the court adopted Promedev’s proposed creative product 18 language and entered the parties’ agreed judgment. (Judgment (Dkt. # 134).) Pursuant to 19 the parties’ stipulation, the court entered judgment in favor of Promedev and against 20 Defendants on Promedev’s declaratory judgment claim and MaXXiMedia’s 21 counterclaims for breach of contract, breach of the implied duty of good faith and fair 22 1 dealing, copyright infringement, trade secret misappropriation, violation of the 2 Washington Consumer Protection Act, fraudulent inducement, and fraudulent
3 misappropriation. (Id. at 1-2.) The court also entered judgment, pursuant to the 4 stipulation, in favor of MaXXiMedia on Promedev’s claims for breach of contract, breach 5 of the implied duty of good faith and fair dealing, and “civil coercion, extortion, and 6 blackmail.” (Id.) 7 III. ANALYSIS 8 Plaintiffs assert that they are entitled to an award of attorneys fees and costs as the
9 prevailing party on their contract-related claims pursuant to the Agreement and for 10 defending against MaXXiMedia’s copyright infringement claims. (See generally Pl. 11 Mot.) Defendants assert that neither party prevailed on the contract claims or, in the 12 alternative, that they are the prevailing party. (See generally Defs. Mot.) Defendants 13 also oppose Plaintiffs’ request for fees incurred in relation to MaXXiMedia’s copyright
14 infringement claim. For the reasons set forth below, the court concludes that Promedev is 15 entitled only to the attorneys’ fees and costs it incurred as the prevailing party under the 16 Copyright Act. 17 A. Contractual Claims 18 Promedev argues that it is the prevailing party under the Agreement, and is thus
19 entitled to attorneys’ fees and costs, because it prevailed on its declaratory judgment 20 claim and thus achieved nearly all of its goals in this litigation. (Pl. Mot. at 2, 3-4, 6-7.) 21 Defendants, meanwhile, contend that neither party is the prevailing party and, as a result, 22 each party should bear its own fees and costs. (Defs. Resp. at 4-5; Defs. Mot. at 4-5.) In 1 the alternative, Defendants argue that if the court deems any party to be the prevailing 2 party, it should be Defendants because Promedev paid the sums it owed under the
3 Agreement after it filed suit and eventually dropped its breach of contract claim against 4 Mr. Wilson. (Defs. Mot. at 6-7.) 5 Paragraph 14 of the Agreement awards “the prevailing party . . . actual attorney’s 6 fees, costs, and expenses reasonably expended” “to enforce the terms of th[e] 7 Agreement . . . or to protect those rights provided by [the Agreement] or by law.” 8 (Agreement ¶ 14.) The Agreement does not define “prevailing party.” (See generally
9 id.) Under RCW 4.84.330,2 however, “prevailing party” means “the party in whose favor 10 final judgment is rendered” and an award of fees to the prevailing party is mandatory, 11 with no discretion except as to the amount. RCW 4.84.330; Crest Inc. v. Costco 12 Wholesale Corp., 115 P.3d 349, 355 (Wash. Ct. App. 2005). “When neither party wholly 13 prevails, the court should award fees to the substantially prevailing party, and the identity
14 of the substantially prevailing party depends on the extent of the relief afforded the 15 parties.” McLelland v. Paxton, 453 P.3d 1, 23 (Wash. Ct. App. 2019). If both parties 16 prevail on major issues, both parties bear their own costs and fees. Marassi v. Lau, 859 17 P.2d 605, 607 (Wash. Ct. App. 1993), abrogated on other grounds by Wachovia SBA 18 Lending, Inc. v. Kraft, 200 P.3d 683, 687-88 (Wash. 2009).
19 // 20 //
21 2 Although the Agreement is silent on the issue, the parties have agreed throughout this litigation that the Agreement (and thus its attorneys’ fees provision) is governed by Washington 22 law. (See 4/1/24 Order at 9 (so noting).) 1 Here, the judgment awarded affirmative relief only to Promedev on its declaratory 2 judgment claim. (See Judgment at 1-2.) That judgment, however, was entered pursuant
3 to an agreement by the parties—it was not based on the court’s conclusion that Promedev 4 prevailed on that claim.3 (See 4/19/24 Stip. at 1.) The court determined only that 5 Promedev’s claims for declaratory judgment and breach of the covenant of good faith and 6 fair dealing would be submitted to the jury at trial. (See supra at 5-7.) It was the parties 7 who decided that judgment should be entered in Promedev’s favor on its declaratory 8 judgment claim and in MaXXiMedia’s favor on Promedev’s good faith and fair dealing
9 claim. (See 4/19/24 Stip. at 2; see also Defs. Resp. at 5 (discussing the parties’ 10 agreement).) Meanwhile, the court granted both parties’ motions for summary judgment 11 on the major issue of liability for breach of contract. (See supra at 5-7.) Thus, the court 12 agrees with Defendants that neither party is the “prevailing party” under the Agreement 13 and that each party should bear its own fees and costs. Marassi, 859 P.2d at 607.
14 The court thus rejects Defendants’ assertion that they are the prevailing party 15 because MaXXiMedia would have prevailed on its breach of contract counterclaim if 16 Promedev hadn’t tendered payment after it filed suit and because Promedev amended its 17 complaint to remove Mr. Wilson from its own breach of contract claim. (See Defs. Resp. 18 at 2-7; Defs. Mot. at 5-7.) Because the court concluded on summary judgment that
19 Promedev had timely paid MaXXiMedia’s commissions and expenses (see 4/1/24 Order 20 at 12-15, 17), Defendants’ contention that they would have prevailed if only Promedev 21
3 Indeed, neither party moved for summary judgment on the declaratory judgment claim. 22 (See 4/1/24 Order at 9 n.4 (so observing).) 1 hadn’t timely paid them is not convincing. And although Promedev included Mr. 2 Wilson’s name in the subheading for its breach of contract claim in its original complaint,
3 the allegations therein named only MaXXiMedia, and Promedev pursued discovery 4 related to the breach of contract claim from Mr. Wilson only in his capacity as 5 MaXXiMedia’s corporate representative. (See Pl. Resp. at 8-10; see also Compl. 6 ¶¶ 59-61 (making allegations only against MaXXiMedia); 5/24/24 Rainwater Decl. (Dkt. 7 # 138-1) ¶ 2, Ex. 1 (Dkt. # 133-1) at 402:2-7 (transcript of Mr. Wilson’s deposition, 8 noting switch from questioning Mr. Wilson in his role as corporate representative to
9 questioning him personally about the extortion claim).) Thus, the court awards neither 10 party prevailing party attorneys’ fees and costs under the Agreement. 11 B. Copyright Infringement Claim 12 Promedev also asserts that it is entitled, pursuant to the Copyright Act, 17 U.S.C. 13 § 505, to an award of the attorneys’ fees and costs it incurred in defending against
14 MaXXiMedia’s copyright infringement counterclaim. (Pl. Mot. at 2, 7-8.) That statute 15 empowers the court to exercise its discretion to award “full costs” and a “reasonable 16 attorney’s fee” to the prevailing party in a copyright action. 17 U.S.C. § 505. In 17 determining whether to award attorneys’ fees under § 505, the court may consider—but is 18 not limited to—the following factors: “(1) the degree of success obtained,
19 (2) frivolousness, (3) motivation, (4) [the] reasonableness of [the] losing party’s legal and 20 factual arguments, and (5) the need to advance considerations of compensation and 21 deterrence.” Shame On You Prods., Inc. v. Banks, 893 F.3d 661, 666 (9th Cir. 2018) 22 (quoting Wall Data Inc. v. L.A. Cnty. Sheriff’s Dep’t, 447 F.3d 769, 787 (9th Cir. 2006)). 1 The court should “accord substantial weight to the fourth factor.” Id. (citing Kirtsaeng v. 2 John Wiley & Sons, Inc., 579 U.S. 197, 209 (2016)).
3 The court has already concluded that Defendants’ continued assertion of 4 infringement of 124 unregistered copyrights through summary judgment amounted to 5 “bad faith litigation” (see 4/1/24 Order at 26-28); that their “tactics did not comply with 6 the law” (see 4/11/24 Order at 6-8); and that their “prolonged assertion” of the copyright 7 infringement claims resulted in “an extraordinary case involving conduct so egregious as 8 to necessitate sanctions” (see id.). As a result, the court has no trouble finding that the
9 five factors listed above favor an award to Promedev pursuant to § 505. 10 Defendants argue that an award of fees is unwarranted where they had a “genuine 11 belief” that Promedev’s post-filing but timely payment of the amounts it owed under the 12 Agreement “constituted unauthorized use of its creative works and infringement on those 13 works with copyright registrations.” (Defs. Resp. at 8.) Even if Defendants had such a
14 belief, the court cannot find that it was reasonable for them to pursue copyright 15 infringement claims based on 124 advertisements for which they did not even submit 16 registration applications. (See 4/1/24 Order at 8 n.3.) And contrary to Defendants’ 17 assertion, copyright holders will not be “chill[ed]” from bringing infringement claims 18 based on appropriately registered copyrights by an award of fees in this “egregious” case.
19 (See id. at 8; Defs. Resp. at 9.) Therefore, the court grants Promedev’s motion for an 20 award of the attorneys’ fees and costs it reasonably incurred in defending against 21 MaXXiMedia’s copyright infringement counterclaim. 22 1 Promedev asks the court to order Defendants’ attorneys to pay a portion of any 2 attorneys’ fees award as an additional sanction for their conduct related to
3 MaXXiMedia’s copyright infringement counterclaim pursuant to 28 U.S.C. § 1927. (Pl. 4 Mot. at 8-10.) The court, however, has already sanctioned Defendants’ attorneys for 5 maintaining the copyright infringement counterclaim and deemed that sanction sufficient 6 and no greater than necessary to deter repetition of that conduct. (See generally 4/11/24 7 Order.) The court declines to impose further sanctions on Defendants’ attorneys. 8 C. Fees and Costs
9 Having determined that Promedev is entitled to attorneys’ fees and costs 10 reasonably incurred in connection with defending against the copyright infringement 11 counterclaim, the court now turns to the issue of how to quantify those fees and costs. 12 1. Fees 13 Promedev seeks a total award of $1,525,264.00 in attorneys’ fees. (Pl. Mot. at 10
14 (citing 5/9/24 Rainwater Decl. (Dkt. # 123) ¶ 10.) The party seeking an award of 15 attorneys’ fees bears the burden of demonstrating that the request is reasonable. See Scott 16 Fetzer Co. v. Weeks, 859 P.2d 1210, 1216 (Wash. 1993). To determine a reasonable fee, 17 the court begins by calculating the “lodestar,” which equals the number of hours 18 reasonably expended on the litigation multiplied by a reasonable hourly rate. Mahler v.
19 Szucs, 957 P.2d 632, 651 (Wash. 1998), implied overruling on other grounds recognized 20 in Matsyuk v. State Farm Fire & Cas. Co., 272 P.3d 802 (Wash. 2012)). The request 21 must be accompanied by contemporaneous records documenting the hours worked. Id. 22 The documentation “need not be exhaustive or in minute detail,” but it must inform the 1 court of the number of hours worked, the type of work performed, and the category of 2 attorney who performed the work. Scott Fetzer Co., 859 P.2d at 1216 (quoting Bowers v.
3 Transamerica Title Ins. Co., 675 P.2d 193, 203 (Wash. 1983)). 4 Because the court “must limit the lodestar to the hours reasonably expended,” it 5 should “discount hours spent on unsuccessful claims, duplicated effort, or otherwise 6 unproductive time.” Bowers, 675 P.2d at 203. In general, if attorneys’ fees “are 7 recoverable for only some of a party’s claims, the award must properly reflect a 8 segregation of the time spent on issues for which fees are authorized from time spent on
9 other issues.” Boguch v. Landover Corp., 224 P.3d 795, 807 (Wash. Ct. App. 2009) 10 (quoting Mayer v. City of Seattle, 10 P.3d 408, 415 (Wash. Ct. App. 2000)). The “court 11 need not segregate time, however, ‘if it determines that the various claims in the litigation 12 are “so related that no reasonable segregation of successful and unsuccessful claims can 13 be made.”’” Id. (quoting Mayer, 10 P.3d at 415). “The court must also determine the
14 reasonableness of the hourly rate of counsel at the time the lawyer actually billed the 15 client for the services.” Mahler, 957 P.2d at 651 (citing Fisher Props., Inc. v. 16 Arden-Mayfair, Inc., 798 P.2d 799, 806-07 (Wash. 1990)). 17 First, Promedev seeks approval of hourly rates ranging from $850 per hour for 18 DLA Piper LLP partners Anthony Todaro and Michael Garfinkel to $180 per hour for
19 paralegal Robert McFadden. (See Pl. Mot. at 10-11; 5/9/24 Rainwater Decl. ¶¶ 4-8, Exs. 20 A-E (attorney biographies); see also id. ¶ 9, Ex. F (spreadsheet of time billed in this 21 matter).) Counsel asserts that these rates are lower than those they actually charged to 22 Promedev. (5/9/24 Rainwater Decl. ¶ 10.) Defendants do not oppose Promedev’s 1 attorneys’ billing rates (see generally Defs. Resp.) and the court finds that these rates are 2 consistent with the rates charged in this District by attorneys of similar skill, experience,
3 and reputation. Thus, the court approves Promedev’s attorneys’ requested billing rates. 4 Second, Promedev seeks an award based on 2,183.3 hours of work performed in 5 this matter. (See 5/9/24 Rainwater Decl. ¶ 10.) In reaching this total, Promedev 6 excluded: 7 (1) time spent on claims for which Promedev was not successful—including Promedev’s claim for civil extortion, breach of contract, breach of the 8 implied duty of good faith and fair dealing, and breach of fiduciary duty—to the extent such time can be reasonabl[y] segregated from other time spent 9 pursuing or defending successful claims; (2) time [attorneys] spent getting caught up to speed in this case . . . ; (3) time that [Mr. Rainwater] was able 10 to identify that is duplicative or unnecessary, as well as attorney travel time; (4) time spent on Promedev’s unsuccessful motion to strike; [and] (5) time 11 spent by non-litigation attorneys who advised Promedev and prior to Promedev hiring litigation counsel in response to Defendants’ July 6, 2022 12 demand letter.
13 (5/9/24 Rainwater Decl. ¶ 9; see id., Ex. F (striking time entries excluded from 14 Promedev’s fee request).) In addition, Promedev excluded time spent briefing the court’s 15 order to show cause why it should not grant summary judgment in Defendants’ favor on 16 Promedev’s breach of contract claim. (See Pl. Mot. at 12-13.) 17 The court, however, limited Promedev’s award to the fees it reasonably incurred in 18 defending against MaXXiMedia’s copyright infringement counterclaim pursuant to the 19 Copyright Act. (See supra at 11-12.) Because Promedev has not segregated those fees 20 from the fees incurred in relation to other claims, the court cannot determine an 21 appropriate award based on the current record. Therefore, the court ORDERS Promedev 22 1 to file an amended fee request based only on the fees it incurred in defending against the 2 copyright infringement counterclaim.
3 2. Costs 4 Promedev also requests an award of $14,800.95 in costs, including its filing fee, 5 fees charged by court reporters and videographers, and transcript costs. (See Pl. Mot. at 6 2, 10; 5/9/24 Rainwater Decl. ¶ 13, Ex. H (listing costs).) The court, however, awarded 7 Promedev only the costs incurred in defending against MaXXiMedia’s copyright 8 infringement counterclaim pursuant to the Copyright Act. (See supra at 11-12.)
9 Accordingly, the court ORDERS Promedev to file an amended costs request that includes 10 only the costs it incurred in defending against that counterclaim. 11 IV. CONCLUSION 12 For the foregoing reasons, the court GRANTS in part and DENIES in part 13 Promedev’s motion for attorneys’ fees (Dkt. # 123) and DENIES Defendants’ motion for
14 attorneys’ fees (Dkt. # 126). The court ORDERS Promedev to file, by no later than June 15 28, 2024, an amended request that includes only the fees and costs it reasonably incurred 16 in defending against MaXXiMedia’s copyright infringement counterclaim. Defendants 17 may file an optional response to Promedev’s amended request by no later than July 8, 18 2024.
19 Dated this 18th day of June, 2024. A 20 21 JAMES L. ROBART United States District Judge 22