Shloss v. Sweeney et al

Filing 87

MOTION Judicial Clarification of Bases for Prior Order Awarding Attorneys' Fees filed by Carol Loeb Shloss. Motion Hearing set for 11/12/2007 09:00 AM in Courtroom 8, 4th Floor, San Jose. (Ahrens, Julie) (Filed on 10/2/2007)

Shloss v. Sweeney et al

Doc. 87

Case 5:06-cv-03718-JW

Document 87

Filed 10/02/2007

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LAWRENCE LESSIG ANTHONY T. FALZONE (SBN 190845) [e-mail] JULIE A. AHRENS (SBN 230170) [e-mail] STANFORD LAW SCHOOL CENTER FOR INTERNET AND SOCIETY 559 Nathan Abbott Way Stanford, California 94305-8610 Telephone: [phone] Facsimile: [phone] MARK A. LEMLEY (SBN 155830) [e-mail] MATTHEW M. WERDEGAR (SBN 20047) [e-mail] KEKER & VAN NEST LLP 710 Sansome Street San Francisco, California 94111 Telephone: [phone] Facsimile: [phone] BERNARD A. BURK (No. 118083) [e-mail] ROBERT SPOO (admitted pro hac vice) [e-mail] HOWARD RICE NEMEROVSKI CANADY FALK & RABKIN A Professional Corporation Three Embarcadero Center, 7th Floor San Francisco, California 94111-4024 Telephone: [phone] Facsimile: [phone] Attorneys for Plaintiff UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA, SAN JOSE DIVISION CAROL LOEB SHLOSS, Plaintiff, v. SEAN SWEENEY, in his capacity as trustee of the Estate of James Joyce, and THE ESTATE OF JAMES JOYCE Defendants. No. C 06 3718 JW HRL Date: November 12, 2007 Time: 9:00 a.m. PLAINTIFF'S NOTICE OF MOTION AND MOTION FOR JUDICIAL CLARIFICATION OF BASES FOR PRIOR ORDER AWARDING ATTORNEYS' FEES

PLAINTIFF'S NOTICE OF MOTION & MOTION FOR JUDICIAL CLARIFICATION

Dockets.Justia.com

Case 5:06-cv-03718-JW

Document 87

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NOTICE OF MOTION TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on November 12, 2007 at 9:00 a.m., or as soon thereafter as the matter may be heard, in Courtroom 8, 4th Floor of the above-entitled Court located at 280 South 1st Street, San Jose, CA, 95113, the Honorable James Ware presiding, Plaintiff Carol Loeb Shloss ("Shloss") will and hereby does move this Court, pursuant to Rule 54(b) of the Federal Rules of Civil Procedure to clarify the Court's Order Granting Plaintiff's Motion for Award Of Attorney Fees And Costs dated May 30, 2007.

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Introduction. During the time since the Court ruled that Plaintiff Carol Shloss should recover her attorneys' fees in this action, the parties have attempted to agree on an amount for such fees, unfortunately without success. Before initiating the motions practice necessary to determine that amount judicially, Plaintiff respectfully asks the Court to clarify in part the basis for the Court's Order Granting Plaintiff's Motion For Award Of Attorneys' Fees And Costs dated May 30, 2007 (the "Order"). Plaintiff seeks this clarification because, under governing law, an award of fees in a copyright case lies within the District Court's sound discretion, guided by certain factors articulated by the United States Supreme Court in Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994), and thus often referred to as the Fogerty factors. The Court's earlier Order awarding Professor Shloss her fees fully explored the issues surrounding why she should be considered the prevailing party for these purposes. But the Order's consideration of at least some of the Fogerty factors was more implicit than explicit. Professor Shloss is concerned that Defendants will challenge the Court's fee award on appeal once proceedings are completed, and that Defendants will seize on the less explicit aspects of the Court's ruling to argue that the Court exercised its discretion improperly, or not at all. While she believes that the reasons for the Court's exercise of discretion can be inferred from the record and the parties' briefing, and regrets the need to bring this issue back before the Court, she respectfully suggests that a supplemental order clarifying more explicitly the basis for the Court's exercise of its discretion according to the Fogerty factors will obviate any question the Defendants may seek to raise before the Court of Appeals regarding the basis for the Court's ruling. The Court has the authority to clarify the bases for its prior Order. The Order is

interlocutory, and therefore the Court has the inherent and plenary power to modify or clarify it at any time before final judgment. See City of Los Angeles, Harbor Division v. Santa Monica Baykeeper, 254 F.3d 882, 889 (9th Cir. 2001); see also Fed. Rule Civ. Proc. 54(b). Clarification as requested will assist the parties and the Court of Appeals in the event Defendants insist on appellate review. The case law makes clear that where an award of attorneys' fees furthers the purposes of the Copyright Act, as the award in this case does, an order granting the prevailing party's fee request is appropriate. Because a fee award under section 505 of the Copyright
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Act is not automatic, but rather within the District Court's discretion, appellate courts often look to the District Court's analysis supporting its exercise of that discretion. See Hensley v. Eckerhart, 461 U.S. 424, 437 (1983) (stating it is important for a district court "to provide a concise but clear explanation of its reasons for the fee award"). In particular, in addition to determining the prevailing party, as the Court expressly did in the original Order, the District Court may wish its decision awarding fees to reflect the reasons the award furthers the purposes of the Copyright Act. Fogerty, 510 U.S. at 534 n.19; Fantasy, Inc. v. Fogerty, 94 F.3d 553, 558 (9th Cir. 1996). In addition, the Ninth Circuit has identified several other non-exclusive factors that District Courts may consider when granting a fee award, including (1) the degree of success obtained, (2) frivolousness, (3) motivation, (4) reasonableness of the losing party's legal and factual arguments, and (5) the need to advance considerations of compensation and deterrence. Wall Data Inc. v. Los Angeles County Sheriff's Department, 447 F.3d 769, 787 (9th Cir. 2006) (refusing to reverse district court's fee award where the district court had considered and weighed the appropriate factors). More explicit application of these factors to the record may assist the parties and the Magistrate Judge in the proceedings to determine the proper amount of fees to be awarded, as well as the Court of Appeals should Defendants seek review. No further briefing is necessary. The parties fully addressed the Fogerty factors in their briefing on Plaintiff's original motion for fees. See Declaration of Julie A. Ahrens in Support of Motion for Clarification ("Ahrens Decl."), Ex. A (Plaintiff's Memorandum of Points and Authorities in Support of Motion for Award of Attorneys' Fees and Costs, Docket No. 73, filed April 10, 2007, at 12-19); Ahrens Decl., Ex. B (Defendants' Opposition to Plaintiff's Motion for Award of Attorneys' Fees and Costs, Docket No. 78, filed May 14, 2007 at 13-21); and Ahrens Decl., Ex. C (Plaintiff's Reply Memorandum in Support of Plaintiff's Motion For Award Of Attorneys' Fees And Costs, Docket No. 82, filed May 21, 2007, at 5-10). The Court thus was fully informed regarding the relevant factors and how the record in this case weighed upon them, as is implicitly reflected in the Court's original Order. As the parties have already fully briefed the issue, no further briefing on the question should be necessary. Conclusion. Because further analysis from the Court regarding its reasons for awarding fees
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here will help the parties as they proceed before the Magistrate Judge and in any future appeal, Professor Shloss respectfully requests that the Court clarify its original Order by stating more explicitly the respects in which, under Fogerty and its progeny, it considers its fee award to further the purposes of the Copyright Act. DATED: October 2, 2007 By: /s/ Anthony T. Falzone Julie A. Ahrens STANFORD LAW SCHOOL CENTER FOR INTERNET & SOCIETY 559 Nathan Abbott Way Stanford, Ca 94305 Telephone:[phone] Facsimile: [phone] Mark A. Lemley Matthew M. Werdegar KEKER & VAN NEST LLP 710 Sansome Street San Francisco, California 94111 Telephone: [phone] Facsimile: [phone] Bernard A. Burk Robert Spoo HOWARD RICE NEMEROVSKI CANADY FALK & RABKIN A Professional Corporation Three Embarcadero Center, 7th Floor San Francisco, California 94111-4024 Telephone: [phone] Facsimile:[phone] Attorneys for Plaintiff CAROL LOEB SHLOSS

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