Simpleville Music v. Mizell

511 F. Supp. 2d 1158, 2007 U.S. Dist. LEXIS 11048, 2007 WL 496755

• Court: District Court, M.D. Alabama
• Decided: February 13, 2007
• Docket: Civil Action 1:04cv393-MHT
• Status: Published

Opinion

OPINION AND ORDER

MYRON H. THOMPSON, District Judge.

The plaintiffs (who are members of the American Society of Composers, Authors and Publishers (“ASCAP”) to which they have granted a non-exclusive right to license public performances of their copyrighted musical compositions) brought this lawsuit against defendant H. Jack Mizell, charging that he violated the Copyright Act, 17 U.S.C. §§ 101-1332, by playing ASCAP’s copyrighted musical compositions on the radio without authorization. This court entered summary judgment in favor of the plaintiffs and held that Mizell did, in fact, violate the Copyright Act when he broadcasted the plaintiffs’ songs without prior authorization. Simpleville Music v. Mizell, 451 F.Supp.2d 1293 (M.D.Ala.2006) (Thompson, J.).

This cause is now before the court on the plaintiffs’ motion for attorneys’ fees and expenses. The plaintiffs’ motion will be granted to the extent that, of the total request of $ 91,060.56, the court will award $ 56,175.00 in fees and $ 6,826.24 in expenses, for a total of $ 63,001.24.

I. APPELLATE FEES AND EXPENSES

The Copyright Act provides that the court in its discretion may award costs and attorney’s fees to the prevailing party. 17 U.S.C. § 505; see also Fogerty v. Fantasy, Inc., 510 U.S. 517, 534, 114 S.Ct. 1023, 127 L.Ed.2d 455 (1994). A portion of the fees requested by the plaintiffs, $ 8,902.70, is for work done in connection with Mizell’s appeal of this case. Although § 505 of the Copyright Act allows the prevailing party attorney’s fees and expenses for services rendered on appeal, 4-14 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 14.10[E] (2006) (“An award of attorney’s fees may be made for services rendered on appeal as well as at the trial level.”), a district court is not authorized to award fees and expenses for appellate work. Davidson v. City of Avon Park, 848 F.2d 172, 173 (11th Cir.1988) (“As to fees for services on appeal, we hold that the district court is not authorized ... to control the filing time or assessment of attorney’s fees for services rendered on appeal.”); Wyatt v. Sawyer, 67 F.Supp.2d 1331, 1346-1347 (M.D.Ala.1999) (Thompson, J.) (“a district court is not authorized to award fees and expenses for appellate work”). Instead, “If a party wishes to obtain fees on appeal, he or she must file a petition with the clerk of [the Eleventh Circuit] within fourteen days of the issuance of the opinion of [that] court.” Mills v. Freeman, 118 F.3d 727, 734 (11th Cir.1997). 1 Consequently, the plaintiffs’ request for attorneys’ fees and expenses in connection with Mizell’s appeal in the amount of $ 8,902.70 is denied.

II. TRIAL FEES AND EXPENSES The remaining fees and expenses total $ 82,157.86. The plaintiffs contend that they are entitled to their attorneys’ fees and expenses because they have prevailed on all of the claims asserted in their motion for summary judgment, and thus they are ‘prevailing parties’ for purposes of a fee award. “Section 505 of the 1976 Copyright Act, 17 U.S.C. § 505, permits the trial court in its discretion to award a reasonable attorney’s fee to the prevailing party in a copyright infringement action.” Original Appalachian Artworks, Inc. v. Toy Loft, Inc., 684 F.2d 821, 832 (11th Cir.1982).

The starting point in setting any fee award for an attorney is determining the “lodestar” figure — that is, the product of the number of hours reasonably expended to prosecute the lawsuit and the reasonable hourly rate for work performed by similarly situated attorneys in the community. Norman v. Housing Auth. of Montgomery, 836 F.2d 1292, 1299 (11th Cir.1988). After calculating the lodestar fee, the court should then proceed with an analysis of whether any portion of this fee should be adjusted upwards or downwards. Pennsylvania v. Del. Valley Citizens’ Council for Clean Air, 478 U.S. 546, 565-66, 106 S.Ct. 3088, 92 L.Ed.2d 439 (1986).

In determining the lodestar figure and whether it should be adjusted upwards or downwards, the court is guided by the 12 factors set out in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir.1974); 2 see also Blanchard v. Bergeron, 489 U.S. 87, 91-92, 109 S.Ct. 939, 103 L.Ed.2d 67 (1989). These factors are: (1) the time and labor required; (2) the novelty and difficulty of the questions; (3)the skill required to perform the legal services properly; (4) the preclusion of other employment by the attorney due to acceptance of the case; (5) the customary fee in the community; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or circumstances; (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 length of the professional relationship with the client; and (12) awards in similar cases. Johnson, 488 F.2d at 717-19.

The fee applicant bears the burden of “establishing entitlement and documenting the appropriate hours and hourly rates.” Id. at 1303. This burden includes supplying the court with specific and detailed evidence from which it can determine the reasonable hourly rate; maintaining records to show the time spent on the different claims; and setting out with sufficient particularity the general subject matter of the time expenditures so that the district court can assess the time claimed for each activity. ACLU v. Barnes, 168 F.3d 423, 427 (11th Cir.1999). “A well-prepared fee petition also would include a summary, grouping time entries by the nature of the activity or state of the case.” Id. (citation omitted).

A fee applicant should also exercise “billing judgment,” id. at 428 (quoting Hensley v. Eckerhart, 461 U.S. 424, 434, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983)), that is, the applicant should “exclude from his fee applications ‘excessive, redundant, or otherwise unnecessary [hours],’ which are hours ‘that would be unreasonable to bill to a client and therefore to one’s adversary irrespective of the skill, reputation, or experience of counsel.’ ” Id. (citation omitted).

“Those opposing fee applications have obligations, too. In order for [district] courts to carry out their duties in this area, ‘objections and proof from fee opponents’ concerning hours that should be excluded must be specific and ‘reasonably precise.’ ” Id. (citation omitted). While Mizell has challenged the plaintiffs’ fee request as “patently and clearly excessive,” Mizell Resp. Atty. Fees. ¶ 1, he has not identified what hours and rates are improper; he has, in short, offered nothing to help the court in its assessment of the plaintiffs’ request. Nevertheless, despite this failing on Mizell’s part, the court will use its judgment to decide whether to award attorneys’ fees and expenses to the plaintiffs in the amount requested.

A. REASONABLE RATES

To determine whether the hourly rate submitted by the plaintiffs’ attorneys is reasonable, the court will consider the customary fee and market rate for the attorneys, in addition to their experience, skill and reputation. See Johnson, 488 F.2d at 718; Norman v. Housing Authority of the City of Montgomery, 836 F.2d 1292, 1299 (11th Cir.1988) (“A reasonable hourly rate is the prevailing market rate in the relevant legal community for similar services by lawyers of reasonably comparable skills, experience, and reputation.”). The plaintiffs’ counsel seek the following hourly rates:

2004 2005 2006

Hourly Hourly Hourly

Attorneys_Rate Rate Rate

James W. Gewin_$ 365 $ 390 $ 415

Dylan C. Black_$ 210 $ 235 $ 255

BradleyJS. Burleson_n/a_n/a__J|Sj/75_

2004 2005 2006

Hourly Hourly Hourly

Legal Assistants_Rate Rate Rate

Terry J. Kelley_n/a_n/a $ 155

Cindy Seay_ n/a_n/a $ 140

Joshua A. Andrews_n/a_$ 95_n/a

Cheryl H. Thompson $ 75 $ 80 $ 90

The plaintiffs defend their request on several grounds. First, they argue that the hourly rates charged in this case are the same rates charged in other ASCAP cases handled by counsel’s firm. Specifically, they contend that “[w]hat [they] charge[ ] clients is powerful, and perhaps the best, evidence of [their] market rate,” Dillard v. City of Greensboro, 213 F.3d 1347, 1354-55 (11th Cir.2000), and that the plaintiffs’ counsel actually billed ASCAP, and ASCAP has already paid, the amount requested for their work in this matter. The plaintiffs also point to Gewin’s extensive experience in litigating copyright cases as ASCAP’s legal counsel since 1970 and Black’s experience as a copyright litigator to explain that they used such high-priced attorneys in an effort to reduce the number of hours required to litigate this matter. They submitted affidavits from two Montgomery attorneys who attest that based on the difficulties inherent in copyright cases, Gewin’s and Black’s skills and experience, and the requirements of this particular case, their requested rates are reasonable and appropriate.

The court has considered the plaintiffs’ evidence demonstrating the experience, reputation and ability of its attorneys. The court also appreciates the experience required to represent plaintiffs in copyright cases, and the public policy concerns that inform the setting of attorney’s fees in these cases. However, the court’s determination of attorney’s fees must also be guided by the prevailing market rate, which, in this case, is that of Montgomery, Alabama. See Black v. M.G.A., Inc., 51 F.Supp.2d 1315, 1320-21 (M.D.Ala.1999) (Thompson, J.) (“ ‘The rate of attorney’s fees is that of the place where the case is filed.’ ”) (quoting Cullens v. Georgia Dep’t of Transp., 29 F.3d 1489, 1494 (11th Cir.1994)). The only evidence in the record of Alabama’s market rate for attorney’s fees comes from the affidavit submitted by Robert D. Segall, where he states

“the customary range of hourly rates for lawyers of [Gewin’s] skill and experience range between $ 300 and $ 375. Litigators in Montgomery with approximately 10 years’ experience customarily charge hourly rates between $ 200 and $ 250 for complex business litigation. Litigators in Montgomery with 1-2 years of experience customarily charge hourly rates between $ 160 and $ 185 for complex business litigation.”

Segall Aff. ¶ 5 3 Based on Segall’s affidavit testimony, the court believes that the applicable range for Gewin is $ 300 to $ 375, the applicable range for Black is $ 200 to $ 250 based on his 10 years of experience, and the applicable range for Burleson is $ 160 to $ 185 based on his one to two years of experience. Although the rates billed by Gewin, Black, and Burleson may be their usual billable rates as evidenced by the fact that AS-CAP has already paid them at those rates, the court will limit their rates to what is reasonable in the Montgomery market.

Consequently, the court finds that an appropriate rate is $ 300 per hour for Gewin, $ 200 per hour for Black, and $ 160 per hour for Burleson, which all fall within the range provided by Segall. The court will also discount the requested hourly rates for Kelley, Seay, Andrews, and Thompson as indicated in the tables below.

Attorneys_Hourly Rate

James W. Gewin_$ 300_

Dylan C. Black_$ 200_

Bradley S. Burleson $ 160

Legal Assistants_Hourly Rate

Terrv J. Kelley_$ 100_

Cindy Seay_$ 100_

Joshua A. Andrews_$ 95_

Cheryl H. Thompson_$ 80_

B. REASONABLE HOURS

In calculating the reasonable hours, the court considers the time and labor required to litigate this case and the experience and ability of the attorneys. See Johnson, 488 F.2d at 718. The plaintiffs’ attorneys submit that they worked on this case for a total of 288.25 hours. They worked 254.25 hours up until this court’s summary-judgment ruling in their favor. This case stretched for over two years, all the way until the eve of trial. Additionally, Mizell forced the plaintiffs to litigate every issue in their complaint because he was unwilling to concede any points, no matter how non-meritorious. In the exercise of billing judgment, the plaintiffs also state that they are not seeking reimbursement for the time and expenses incurred by ASCAP’s in-house counsel on this case, which would greatly increase the number of hours expended.

In light of the length of time this litigation has endured, and the fact that the plaintiffs’ counsel prepared the case fully for trial, the 254.25 total hours spent by the plaintiffs’ counsel prior to this court’s summary-judgment ruling are reasonable.

The remaining 34 hours included in the plaintiffs’ first supplemental brief for attorneys’ fees was spent after the court’s ruling. These hours included the time spent on post-judgment matters and the plaintiffs’ multiple briefs and evidence for attorneys’ fees. Based on the extensive experience that counsel for the plaintiffs have in litigating copyright-infringement cases, 34 hours to prepare a motion for attorneys’ fees seem excessive. Therefore, the court will reduce the hours submitted in the plaintiffs’ first supplemental brief for attorneys’ fees to 17 hours.

In conclusion, the court will award 254.25 hours pre-summary judgment and 17 hours post-summary judgment, for a total of 271.25 hours.

C. LODESTAR CALCULATIONS

The court is of the opinion, based on the Johnson criteria, that the lodestars will be calculated as follows:

Time Rate Total

James W. Gewin 45.25 $ 300.00 $ 13,575.00

Dylan C. Black 190.50 200.00 38,100.00

Bradley S. Burleson 19.25 160.00 3,080.00

Terry J. Kelley 0.25 100.00 25.00

Cindy Seay 5.00 100.00 500.00

Joshua A. Andrews 1.00 95.00 95.00

Cheryl H. Thompson 10.00 80.00 800.00

Total 271.25 $ 56,175.00

Applying the Johnson factors, the court also does not find an upward or downward adjustment appropriate in this case. For example, the skill required to perform the legal services properly, Johnson, 488 F.2d at 718, was adequately reflected in the plaintiffs’ counsels’ hourly rates. Additionally, three of the Johnson factors were inapplicable in this case: This case was not based on a contingency fee arrangement, and there was no evidence of time limitations, that the plaintiffs’ attorneys were precluded from accepting other employment, or that the case was undesirable. Id. at 717-19.

The court recognizes, however, that under the eighth Johnson factor (the amount of relief involved and the results obtained, Johnson, 488 F.2d at 718), the amount of attorneys’ fees and expenses the plaintiffs are seeking may seem large compared to the statutory-damages award of $ 11,250. However, the fee-shifting provision of § 505 of the Copyright Act was created to encourage copyright owners to bring lawsuits in instances where the recovery may fall well below the expense to bring such a suit. See Little Mole Music v. Spike Investment, Inc., 720 F.Supp. 751, 757 (W.D.Mo.1989) (Stevens, J.) (noting that “often the actual value of the recovery in copyright infringement actions may not be commensurate with the attorneys’ fees incurred to obtain the recovery” and “[without the fee shifting provision, copyright owners would doubtless be exceedingly reluctant to enforce their rights in such cases”); 4 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 14.10 (2006) (“The rationale for an award of attorney’s fees has been summarized as follows: ‘An award of attorney’s fees ... prevents copyright infringements from going unchallenged where the commercial value of the infringed work is small and there is no economic incentive to challenge an infringement through expensive litigation.’ ”) (quoting Quinto v. Legal Times of Wash., Inc., 511 F.Supp. 579, 581 (D.D.C.1981)).

Therefore, it is not unreasonable for a fee award to be higher than the statutory-damages amount. See, e.g.,. Cable/Home Communication Corp. v. Network Productions, Inc., 902 F.2d 829, 853 (11th Cir.1990) (upholding a district court’s award of $ 451,789.06 in fees for a $ 130,-000 damages award); Little Mole Music, 720 F.Supp. at 757 (“it is well-established that a fee award need not be equal or less than the statutory damages amount”); International Korwin Corp. v. Kowalczyk, 855 F.2d 375 (7th Cir.1988) (upholding a $ 21,502.75 fee award and a $ 10,500 statutory damages award); Broadcast Music, Inc. v. Behulak, 651 F.Supp. 57 (M.D.Fla. 1986) (Fawsett, J.) ($ 41,887.50 in attorneys’ fees and only $ 12,000 awarded in statutory damages). The -award for attorneys fees in this case is also in line with awards in similar cases. See id.

The high fee award is particularly reasonable in this case, where the plaintiffs, clearly in an effort to curtail litigation and its cost, accepted the statutory minimum of $ 750 per violation. Had they sought the maximum statutory award of $ 30,000 per infringement, they could have been awarded as much as $ 450,000 in statutory damages.

Finally, it cannot be overlooked that Mizell (acting both with and without an legal representation) fought this case aggressively, often pursuing defenses that clearly lacked merit and often requiring the plaintiffs to prove points that were clearly undisputed. He, in short, brought this hefty fee bill on himself.

III. EXPENSES

The plaintiffs also seek expenses incurred from this litigation in the amount of $ 6,826.24. With the exception of overhead-office expenses normally absorbed by the attorney, all reasonable expenses incurred in case preparation, during the course of litigation or as an aspect of settlement of the case, may be taxed as costs; the standard of reasonableness is to be given a liberal interpretation. NAACP v. City of Evergreen, 812 F.2d 1332, 1337 (11th Cir.1987); Dowdell v. City of Apopka, 698 F.2d 1181, 1192 (11th Cir.1983); Black v. M.G.A., Inc., 51 F.Supp.2d 1315, 1326 (M.D.Ala.1999) (Thompson, J.).

Of the $ 6,826.24 the plaintiffs seek, $ 5,312.74 is for such things as filing fees, copying costs, postage and overnight-delivery expenses, court-reporter fees, and fees for electronic-legal research. They also seek $ 1,513.50 incurred to obtain certified original copyright-registration certificates and assignments of copyright from the United States Copyright office. This expense was necessary because Mizell refused to stipulate that the copies presented by the plaintiffs could be admitted at trial. The court finds that the expenses submitted by the plaintiffs are reasonable and will award expenses totaling $ 6,826.24.

IV. CONCLUSION

Accordingly, it is ORDERED that plaintiffs Simpleville Music; New Hidden Valley Music Co.; BMG Songs, Inc,; Famous Music Corporation; Sony/ATV Tunes LLC; WB Music Corp.; Lanny Wolfe Music Company; Integrity Music, Inc. d/b/a Integrity’s Hosanna Music; Lensongs Publishing; Universal-MCA Music Publishing, a Division of Universal Studios, Inc.; Doors Music Company; Hulex Music/WB Music Corp.; J. Albert & Son (USA) Inc.; and Pure Songs and Frank Music Corp’s motion for attorneys’ fees and costs (doc. no. 109), is granted to the extent that the plaintiffs shall have and recover costs in the amount of $ 6,826.24 and attorneys’ fees in the amount of $ 56,-175.00, for a total of $ 63,001.24, from defendant H. Jack Mizell.

1 . Although these cases deal with 42 U.S.C. § 1988 and not § 505 of the Copyright Act, the fee-shifting language is virtually identical. Compare 42 U.S.C. § 1988 ("In any action or proceeding to enforce a provision of [enumerated] sections ... the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs”) with 17 U.S.C. § 505 ("In any civil action under this title, the court in its discretion may allow the recovery of full costs by or against any party other than the United States or an officer thereof. Except as otherwise provided by this title, the court may also award a reasonable attorney’s fee to the prevailing party as part of the costs.”). Therefore, § 1988 and § 505 are generally governed by the same legal principles.

2 . In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), the Eleventh Circuit adopted as binding precedent all of the decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981.

3 . Segall continues by saying that “given the relatively few litigators in Montgomery who regularly practice in the area of copyright infringement, and given the evident expertise in this specialized area of law demonstrated by Plaintiff's counsel, and given the fact that Mr. Gewin especially is one of the top lawyers in the entire state ...” it is his opinion that the rates charged in this case are reasonable. Segall Aff. ¶ 6.