Public.Resource.org v. Sheet Metal and Air Conditioning Contractors' National Association, Inc.

Filing 29

RESPONSE (re 22 MOTION for Default Judgment by the Court as to Defendant Sheet Metal and Air Conditioning Contractors' National Association, Inc. ) filed bySheet Metal and Air Conditioning Contractors' National Association, Inc.. (Attachments: # 1 Attachment A)(Napolitan, Nicholas) (Filed on 6/17/2013)

Case 2:12-cv-05883-DMG-VBK Document 117 Filed 06/07/13 Page 1 of 7 Page ID #:902

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No.

Date

CV 12-05883-DMG (VBKx)

Title James J. Braddock v. Angelina Jolie, et al
Present: The Honorable

June 7, 2013
Page

1 of 7

DOLLY M. GEE, UNITED STATES DISTRICT JUDGE

VALENCIA VALLERY
Deputy Clerk

NOT REPORTED
Court Reporter

Attorneys Present for Plaintiff(s)
None Present

Attorneys Present for Defendant(s)
None Present

Proceedings: IN CHAMBERS – ORDER GRANTING IN PART AND DENYING IN
PART DEFENDANTS’ MOTION FOR ATTORNEY’S FEES AND COSTS
[DOC. # 105]
I.
INTRODUCTION
On March 29, 2013, this Court granted Defendants’ motion for judgment on the
pleadings. [Doc. # 96.] On April 22, 2013, after dismissing the unserved Defendants Edin
Sarkic and Scout Film, the Court issued a judgment in favor of Defendants Angelina Jolie, GK
Films, LLC, and FilmDistrict Distribution, LLC and against Plaintiff James J. Braddock. [Doc. #
98.] Plaintiff filed a notice of appeal on April 26, 2013. [Doc. # 101.]
On May 6, 2013, Defendants filed the instant motion for attorney’s fees. [Doc. # 105.]
Plaintiff opposed the motion on May 15, 2013. [Doc. # 113.] Defendants filed their reply on
May 24, 2013. [Doc. # 115.] The Court held a hearing on the motion on June 7, 2013. Having
considered the parties’ arguments as presented in their briefs and at oral argument, the Court now
renders its decision. For the reasons set forth below, Defendants’ motion for attorney’s fees is
DENIED. Defendants’ request for taxable costs is GRANTED.
II.
FACTUAL BACKGROUND
Plaintiff commenced this action by filing the Complaint in the Northern District of
Illinois on December 2, 2011, before Honorable Robert M. Dow, United States District Judge.
[See Doc. # 1.] On December 6, 2011, Plaintiff filed an Ex Parte Application for a Temporary
Restraining Order (“TRO”) enjoining release of Defendants’ film, In the Land of Blood and
Honey, which had been released on a limited basis the day before and was set for national release
on December 23, 2011. [Doc. ## 5, 6.] Plaintiff orally withdrew the motion at a hearing on
December 9, 2011. [Doc. # 13.] Judge Dow instructed Plaintiff to demonstrate whether (1) the
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No.

CV 12-05883-DMG (VBKx)

Title James J. Braddock v. Angelina Jolie, et al

Date

June 7, 2013
Page

2 of 7

court had personal jurisdiction over all the parties in the Northern District of Illinois, (2) venue
was proper in that district, and (3) the case should nevertheless be transferred to the Central
District of California. (Id.) Plaintiff responded to the order by filing a brief attempting to
address Judge Dow’s concerns. [Doc. # 15.]
On March 6, 2012, Defendants filed motions to dismiss and/or transfer the case to the
Central District of California. [Doc. ## 35, 38.] Judge Dow granted the motion to transfer on
June 15, 2012, and the case was received in this Court on July 10, 2013.1 [Doc. # 51.] The
parties exchanged initial disclosures on November 30, 2012, and for the first time Plaintiff
produced a copy of his book, Slamanje Duse, which forms the basis for his Complaint. (Decl. of
Harrison J. Dossick ¶ 10(f) [Doc. # 105-2].) Prior to that date, Defendants had not seen the
book. (Id.) The parties continued discovery, and on February 22, 2013, Defendants filed their
ultimately successful motion for judgment on the pleadings. (Id. ¶ 10(k).)
Harrison J. Dossick, of Reed Smith, LLP, has been lead counsel on this case since its
inception in December 2011. (Dossick Decl. ¶ 1.) In December 2011, Dossick was a partner in
the Los Angeles office of Katten Muchin Rosenman, LLP, which Defendants initially retained to
litigate this case. (Id. ¶ 4.) At the start of the case, Dossick enlisted his then-partner, Kristin
Achterhof, and an associate, Cathay Smith, both in Katten’s Chicago office, to assist him on the
case. (Id. ¶ 5.) Dossick, Achterhof, and Smith were the primary attorneys on the case until
February 2012, when Dossick left Katten and became a partner at Reed Smith. (Id. ¶ 4.) Katten
remained counsel on the case until July 17, 2012, after the case was transferred to this Court.
(Id. ¶ 8.) At that time, Reed Smith substituted in as counsel for Defendants, and Dossick handled
the case with an associate, Christine Neuharth, through its close in April 2013. (Id.) Although
several other attorneys devoted time to the case at times, Dossick, Neuharth, Achterhof, and
Smith have been primarily responsible for the case. Dossick’s declaration describes each
attorney’s professional experience and hourly rates. (See id. ¶ 4, Ex. B; ¶ 6, Ex. C; ¶ 9, Ex. D.) 
III.
LEGAL STANDARD
The Copyright Act of 1976 vests district courts with the discretion to award “a reasonable
attorneys’ fee to the prevailing party.” Love v. Assoc. Newspapers, Ltd., 611 F.3d 601, 614 (9th
Cir. 2010) (quoting 17 U.S.C. § 505). The Court also has discretion to award “full costs” to the
prevailing party. 17 U.S.C. § 505. In deciding whether to award attorney’s fees, courts
generally consider factors including “(1) the degree of success obtained; (2) frivolousness;
1

Hereinafter, the Court refers to the period of litigation prior to transfer to this Court as the “Illinois

phase.”
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No.

CV 12-05883-DMG (VBKx)

Date

June 7, 2013

Title James J. Braddock v. Angelina Jolie, et al

Page

3 of 7

(3) motivation; (4) the objective unreasonableness of the losing party’s factual and legal
arguments; and (5) the need, in particular circumstances, to advance considerations of
compensation and deterrence.” Id. (citing Jackson v. Axton, 25 F.3d 884, 890 (9th Cir. 1994);
Fogerty v. Fantasy, Inc., 510 U.S. 517, 534 n. 19, 114 S. Ct. 1023, 127 L. Ed. 2d 455 (1994)).
An attorneys’ fees award is reasonable if based on a reasonable number of hours expended and a
reasonable hourly rate. See Fantasy, Inc. v. Fogerty, 94 F.3d 553, 561 (9th Cir. 1996); see also
Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S. Ct. 1933, 76 L. Ed. 2d 40 (1983).
IV.
DISCUSSION
A.

Defendants Are Not Entitled to an Award of Full Attorney’s Fees

The Court first considers whether an award of fees and costs is appropriate under the
Fogerty factors. First, Defendants were successful in the action: their motion for judgment on
the pleadings resolved all substantive issues in the case and the Court found that Defendants are
not liable to Plaintiff for copyright infringement.
That Plaintiff’s claims were unsuccessful, however, does not render them frivolous or
objectively unreasonable. A frivolous claim is one that “lacks an arguable basis either in law or
in fact” or is not “colorable” or is “without arguable merit.” Neitzke v. Williams, 490 U.S. 319,
325, 109 S. Ct. 1827, 104 L. Ed. 2d 338 (1989); see also Bibbero Sys., Inc. v. Colwell Sys., Inc.,
893 F.2d 1104, 1109 (9th Cir. 1990) (prevailing defendant not entitled to attorney’s fees even
after prevailing on summary judgment that the claimed copyright was invalid as a matter of law).
Although the Court found that Plaintiff’s book and Defendant’s film were not substantially
similar under the extrinsic test for copyright infringement, there was a colorable basis for
Plaintiff to bring the claims. Defendants assert that Plaintiff was unreasonable to bring the suit
before even seeing the film, but his claims were based in part on alleged communications with
members of the filming team prior to its release, not just on the contents of the film itself.
Notwithstanding that the claims were ultimately unsuccessful, the Court does not find that they
were objectively unreasonable on their merits.
Nevertheless, several aspects of Plaintiff’s litigation tactics in this case were
unreasonable. Plaintiff initiated the action in the Northern District of Illinois, despite the fact
that the only party with any ties at all to Illinois was Film District, LLC, which, although
organized in Illinois, was not alleged to have carried out any business in connection with the film
there. Plaintiff’s decision to file in Illinois was ultimately rejected when Judge Dow transferred
the case to this Court, but in the interim Defendants were forced to defend against an Ex Parte
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No.

CV 12-05883-DMG (VBKx)

Title James J. Braddock v. Angelina Jolie, et al

Date

June 7, 2013
Page

4 of 7

Application for a TRO and file motions to transfer or dismiss in a district with virtually no
connection to the facts underlying the action. Moreover, Plaintiff’s decision to seek a meritless
TRO, after the first release of the film and without notice to Defendants, required Defendants to
expend substantial time and resources that were effectively wasted when Plaintiff voluntarily
withdrew the motion. It appears from the record that Plaintiff had no objective basis for
pursuing his claims in Illinois, particularly after Judge Dow’s order in December 2012, and yet
he continued to pursue the case there for nearly seven months.
Defendants also allege that Plaintiff’s tactics cast doubt on his motivations for pursuing
the action. It is true that Plaintiff failed to provide Defendants with a copy of the book—the
most critical piece of evidence in this case—until November 30, 2012, nearly one year after
initiation of suit. (See Dossick Decl. ¶ 10(f).) Plaintiff also failed to amend his Complaint after
the film’s release. Defendants also point to several websites, posted by Plaintiff’s counsel,
which they believe evince an interest in inducing an unwarranted settlement. (Id. ¶¶ 18, 19, Exs.
V, W.) Although these facts suggest that Plaintiff’s pursuit of the action may have been bad
judgment, they do not demonstrate bad faith. On the present record, the Court does not find that
Plaintiff pursued this action with improper motives.
The Court finds that the Fogerty factors do not justify an award for the entirety of this
case.2 Plaintiff’s substantive claims were not frivolous or unreasonable, and Defendants are not
entitled to full compensation merely because they were successful in their dispositive motion.
Initiation of the suit in Illinois, however, was not reasonable and unnecessarily cost Defendants
significant time and resources. Thus, the Court will examine whether Defendants are entitled to
reasonable compensation for services rendered during the Illinois phase.

B.

Defendants Fail to Establish That Their Request for Fees is Reasonable

Courts use a two-part test to determine whether a fee is reasonable. Pennsylvania v. D.E.
Valley Citizens’ Council for Clean Air, 478 U.S. 546, 564, 106 S. Ct. 3088, 92 L. Ed. 2d 439
(1986). First, the Court must determine a “lodestar” amount by multiplying the number of hours
reasonably expended by a reasonable hourly rate. Id. Second, the Court may increase or
2

At oral argument, defense counsel urged the Court to award fees in this matter to serve the important
purpose of deterring Plaintiff and other litigants from pursuing meritless copyright claims and from using aggressive
publicity tactics to force settlement. The purpose of awarding fees is not to discourage artists from defending their
works due to the threat of attorney’s fees. See Fogerty, 510 U.S. at 517-18. To the extent any deterrence is
necessary under the circumstances of this case, that purpose is adequately served by the Court’s order granting
Defendants’ motion for judgment on the pleadings and the subsequent award of taxable and nontaxable costs against
Plaintiff.
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No.

CV 12-05883-DMG (VBKx)

Title James J. Braddock v. Angelina Jolie, et al

Date

June 7, 2013
Page

5 of 7

decrease this amount depending on the circumstances. Id. at 564-65. Although the lodestar
amount is entitled to a strong presumption of reasonableness, Defendants bear the burden of
proving that their hourly rate and hours billed are reasonable. See Jordan v. Multnomah Cnty.,
815 F.2d 1258, 1262-63 (9th Cir. 1987). A reasonable hourly rate is generally the “rate
prevailing in the community for similar work performed by attorneys of comparable skill,
experience, and reputation.” Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 979 (9th Cir.
2008) (citing Barjon v. Dalton, 132 F.3d 496, 502 (9th Cir. 1997)). In general, the relevant
community for this determination is the forum in which the district court sits, unless local
counsel was unavailable or lacked the necessary experience, expertise, or specialization to handle
the case. Id.
There are numerous flaws with defense counsel’s billings that prevent the Court from
determining a reasonable fee award. First, Defendants request an award of $350,000.00 for the
entire litigation. (See Mot. at 11.) Defendants do not disclose their billing rates for this case
because it was billed pursuant to a confidential insurance contract, but they provide their
“normal” rates as evidence that the amount sought is reasonable.3 (Dossick Decl. ¶¶ 12-13.)
These “normal” rates during the Illinois phase of this case were as follows:4
Attorney
Dossick
Achterhof
Smith

2011 Billing Rate
$635/hour
$550/hour
$430/hour

2012 Billing Rate
$675/hour
$590/hour
$480/hour

Defendants do not provide any information as to the billing rates of the numerous other attorneys
who assisted the primary attorneys throughout the Illinois phase, yet they ask the Court to allow
recovery for the work of these attorneys. (See Dossick Decl. ¶¶ 11, 14, Exs. M, N.) As a
preliminary matter, the Court will not award fees for these attorneys, as it has no information on
their experience and rates and thus no means of determining the reasonableness of their fees.
Defendants also fail to provide any external evidence, such as surveys or affidavits from
unrelated attorneys, to demonstrate the reasonableness of their own fees. Instead, Defendants
contend that the amount sought, $350,000, is reasonable because it is significantly less than what
the bill would have been had they charged their “normal” rates. Dossick represents that the
3

Defendants offer to make their actual rates for this case available to the Court for in camera review. In
light of the other deficiencies in Defendants’ motion, however, such review is unnecessary.
4

Because Neuharth did not begin working on the case until after transfer, her rates and hours are not
included in the Court’s analysis.
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No.

CV 12-05883-DMG (VBKx)

Title James J. Braddock v. Angelina Jolie, et al

Date

June 7, 2013
Page

6 of 7

attorneys expended in excess of 800 hours total defending against Plaintiff’s suit. (Dossick Decl.
¶ 11.) Assuming, arguendo, that the requested $350,000 was the total amount billed, counsel
would have billed at an average hourly rate of approximately $437.50. While this amount is
significantly less than the “normal” rates of Dossick and Achterhof, Defendants still provide no
evidence to demonstrate that this rate would be “reasonable” compared to the rates of other
attorneys of similar skill and experience in Illinois. See Camacho, 523 F.3d at 979.
More importantly, counsel relies on block billing to report the vast majority of the billed
hours during the Illinois phase. See Mendez v. Cnty. of San Bernardino, 540 F.3d 1109, 1128-29
(9th Cir. 2008) (denial of fees was justified where counsel “block-billed” their time, “thereby
frustrating the Court’s efforts to determine whether the fees were, in fact, reasonable”). Most of
the substantive hours logged are described in a block manner, grouping together multiple tasks
under a single amount of hours such that the Court cannot discern whether the amount of time
spent on each individual task was reasonable. For example, on December 7, 2011, Achterhoff
billed 5.4 hours which she described as including “Review court docket, review Complaint,
review Ex Parte Motion for Temporary Restraining Order, conferences with Floyd Mandell,
Cathay Smith and Harrison Dossick; follow-up emails with Harrison Dossick and associates;
telephone call with Harrison Dossick to discuss [REDACTED]; review initial research.”
(Dossick Decl. ¶ 11, Ex. M at 2.) As itemized, counsel’s billing logs do not allow the Court to
discern whether counsel expended a reasonable amount of time on individual phone calls,
conferences, research assignments, and other tasks.
Equally problematic is the fact that portions of these block-billed records are redacted “to
shield irrelevant entries from another matter and to protect attorney-client privilege and
confidentiality.” (Dossick ¶ 11.) For example, on January 19, 2012, Smith billed 7.6 hours
which she described as including “Research motions for more definite statement; [REDACTED];
draft motion to transfer under 1404(a),” and three conference calls with other attorneys regarding
redacted matters. (Id. at 5.) As a result, the Court cannot discern whether the redacted portions
are concealed to protect confidential material or because they relate to another matter entirely.
In short, even assuming Defendants merit an award of fees for the Illinois phase, they fail
to establish that their hourly rates or the number of hours billed are reasonable. See Jordan, 815
F.2d at 1262-63. Defendants fail to provide sufficient evidence to establish that either their
“normal” rates or their blended rates are reasonable in the relevant community. Moreover,
although they provide their hour logs, their hours are recorded in such a way as to make it
impossible for the Court to determine whether a reasonable amount of time was spent by
multiple attorneys on tasks related to this case. Accordingly, Defendants’ motion for an award
of attorney’s fees is denied.
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No.

CV 12-05883-DMG (VBKx)

Title James J. Braddock v. Angelina Jolie, et al
C.

Date

June 7, 2013
Page

7 of 7

An Award of Nontaxable Costs is Merited

Defendants also request an award of $2,638.87 for courier services and electronic legal
research. (See Dossick Decl. ¶ 15, Exs. O, P.) Counsel’s record of costs does not suffer from the
same deficiencies as the fee logs. The cost records are clearly itemized and the amounts billed
appear to be reasonable. Accordingly, the Court will award Defendants nontaxable costs in the
amount of $2,638.87.
V.
CONCLUSION
In light of the foregoing, Defendants’ motion for attorney’s fees is DENIED.
Defendants’ request for nontaxable costs in the amount of $2,638.87 is GRANTED.
IT IS SO ORDERED.

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