Leary v. Manstan et al

Filing 127

ORDER ON DEFENDANTS' JOINT MOTION FOR ATTORNEY'S FEES AND COSTS. For the reasons stated in the attached ruling, defendants' Joint Motion for Attorney's Fees and Costs (Doc. # 109 ) is GRANTED in part and DENIED in part. Defendants ' motion is DENIED to the extent it seeks sanctions against plaintiff's counsel. The motion is GRANTED to the extent it seeks a costs and fees award pursuant to 17 U.S.C. § 505. Defendants are awarded $108,344.02 in costs and fees. It is so ordered.Signed by Judge Jeffrey A. Meyer on 3/27/2018. (Lombard, N.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

JOSEPH LEARY,
Plaintiff,
No. 3:13-cv-00639 (JAM)

v.
ROY MANSTAN, et al.,
Defendants.

ORDER ON DEFENDANTS’ JOINT MOTION FOR ATTORNEY’S FEES AND COSTS
This is a copyright infringement action brought by plaintiff Joseph Leary against
defendants Roy Manstan, Frederic Frese, and Westholme Publishing, LLC. Plaintiff and the
individual defendants share an interest in the Revolutionary War-era submarine built by David
Bushnell known as the “Turtle.” Plaintiff is the copyright owner of an unpublished manuscript
about the submarine. Plaintiff brought this action against defendants alleging that a book later
written by Manstan and Frese and published by Westholme, LLC infringed upon his copyright of
the unpublished manuscript. On July 15, 2015, the Court granted summary judgment in favor of
defendants, dismissing plaintiff’s claims. Defendants have moved for an award of attorney’s fees
pursuant to 17 U.S.C. § 505 and for an award of sanctions against plaintiff’s counsel pursuant to
the Court’s inherent power and 28 U.S.C. § 1927. I will grant defendants’ motion for attorney’s
fees and costs, but I will deny their motion for sanctions against plaintiff’s counsel.
BACKGROUND
The lengthy procedural history of this nearly five-year-old case is set forth more fully in
the Court’s earlier rulings on the parties’ numerous motions filed in this case. See Leary v.
Manstan, 118 F. Supp. 3d 460 (D. Conn. 2015); Leary v. Manstan, 2015 WL 521497 (D. Conn.

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2015). The Court presumes the parties’ familiarity with the procedural and factual background of
the case.
After the Court granted summary judgment in favor of defendants on all of plaintiff’s
claims, defendants timely filed a motion for attorney’s fees and costs and for sanctions against
plaintiff’s counsel. Doc. #73. On February 7, 2017, I denied defendants’ motion without
prejudice because defendants did not supply any of the supporting records necessary for the
Court to determine a reasonable award. Doc. #99 at 2. Defendants have now timely renewed
their motion for attorney’s fees and costs under 17 U.S.C. § 505 and sanctions against plaintiff’s
counsel pursuant to the Court’s inherent power and 28 U.S.C. § 1927.
DISCUSSION
Attorney’s Fees Pursuant to 17 U.S.C. § 505
Federal law provides that in a copyright action “the court in its discretion may allow the
recovery of full costs by or against any party,” and “the court may also award a reasonable
attorney’s fee to the prevailing party as part of the costs.” 17 U.S.C. § 505. The Supreme Court
has observed that the statute “clearly connotes discretion,” and does not prescribe any “precise
rule or formula for awarding fees.” Kirtsaeng v. John Wiley & Sons, Inc., 136 S. Ct. 1979, 1985
(2016) (internal quotation marks omitted).
While the statute gives district courts “broad leeway” in rendering fee award decisions,
the Supreme Court has noted with approval several nonexclusive factors to inform a fee-shifting
decision: “frivolousness, motivation, objective unreasonableness[,] and the need in particular
circumstances to advance considerations of compensation and deterrence.” Ibid. “Of these
factors, ‘objective reasonableness . . . should be given substantial weight in determining whether
an award of attorney[’s] fees is warranted’ because ‘the imposition of a fee award against a

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copyright holder with an objectively reasonable litigation position will generally not promote the
purposes of the Copyright Act.’” Zalewski v. Cicero Builder Dev., Inc., 754 F.3d 95, 108 (2d Cir.
2014) (quoting Matthew Bender & Co. v. W. Pub. Co., 240 F.3d 116, 122 (2d Cir. 2001)).
Nevertheless, in weighing the relevant factors, I must be mindful not to construe “substantial
weight” to mean dispositive weight. See Kirtsaeng, 136 S. Ct. at 1989. In other words, I must
consider all of the relevant factors, beyond simply the reasonableness of a party’s litigation
position. Ibid. In light of these factors, I conclude that an award of attorney’s fees and costs is
warranted in this case.
First, plaintiff’s claims were objectively unreasonable. The mere fact that summary
judgment was granted in favor of defendants in this case does not necessarily mean plaintiff’s
position was objectively unreasonable. See Earth Flag Ltd. v. Alamo Flag Co., 154 F. Supp. 2d
663, 666 (S.D.N.Y. 2001). An objectively unreasonable claim is one that altogether lacks any
legal or factual support. See Viva Video, Inc. v. Cabrera, 9 F. App’x 77, 80 (2d Cir. 2001).
Plaintiff’s claim, indeed, lacked any reasonable factual or legal support.
As I noted in my summary judgment ruling, copyright protection for non-fictional
narratives is quite “thin.” Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 349
(1991). It has long been the rule that “the scope of copyright protection in historical accounts is
narrow indeed, embracing no more than the author’s original expression of particular facts and
theories already in the public domain,” and that “absent wholesale usurpation of another's
expression, claims of copyright infringement where works of history are at issue are rarely
successful.” Hoehling v. Universal City Studios, Inc., 618 F.2d 972, 974 (2d Cir. 1980). In this
case, there is no dispute that defendants’ book did not copy plaintiff’s work or even closely

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paraphrase any portion of it. There was obviously no “wholesale usurpation” of plaintiff’s
expression. Plaintiff’s claim was almost self-evidently doomed from the start.
The works were dissimilar in a number of other aspects. As I previously observed, “the
respective works have obviously differing focuses and approach the material from different
angles.” Leary, 118 F. Supp. 3d at 468. Defendants’ work was largely a technical discussion of
the design and construction of the “Turtle,” with historical information about Bushnell and his
era peppered in for context. Ibid. Plaintiff’s work, on the other hand, was principally a historical
narrative. Additionally, defendants’ work employed a “markedly” different structure than
plaintiff’s copyrighted work, serving largely as a technical manual, whereas plaintiff’s work was
in narrative form. Id. at 469. Other claimed similarities between the two works were plainly not
protectable—including plaintiff’s allegedly original hypothesis about Isaac Doolittle assisting
Bushnell in building the “Turtle,” the use of the “flash-forward” and “flash-back” narrative
device, and recitation of what little historical information is available about Bushnell.
Plaintiff relies on the fact that his expert concluded that plaintiff’s work had been copied.
But, as I noted in my summary judgment ruling, expert testimony in infringement cases is largely
“irrelevant” to the question of whether a copyright has been infringed. Leary, 118 F. Supp. 3d at
465 n.5 (quoting Laureyssens v. Idea Grp., Inc., 964 F.2d 131, 140 (2d Cir. 1992)). A copyright
claim may be objectively unreasonable and be subject to an award of fees notwithstanding expert
testimony that may support the claim. See, e.g., Muller v. Twentieth Century Fox Film Corp.,
2011 WL 3678712, at *3 (S.D.N.Y. 2011) (Chin, J.) (awarding fees); Muller v. Twentieth
Century Fox Film Corp., 794 F. Supp. 2d 429, 443 (S.D.N.Y. 2011) (Chin, J.) (discussing
plaintiff’s expert testimony), aff’d sub nom. Muller v. Anderson, 501 F. App’x 81 (2d Cir. 2012).
Here, plaintiff’s expert conceded little knowledge of copyright law, but boasted a professional

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understanding of plagiarism. See Doc. #41-12 at 35–40. Plagiarism is, of course, distinct from
copyright infringement.1 Accordingly, nothing about the expert’s report moves the needle on the
objective reasonableness of plaintiff’s infringement claim.
Plaintiff next argues that his infringement claim is not objectively unreasonable because
his claim tests an unsettled area of copyright law. Plaintiff cites two cases—Harper & Row
Publishers, Inc. v. Nation Enterprises, 471 U.S. 539 (1985), and Wainwright Sec., Inc. v. Wall St.
Transcript Corp., 558 F.2d 91 (2d Cir. 1977)—as evidence that the law is unsettled as to what
constitutes protectable elements of unpublished copyrighted work. Doc. #110 at 16–17. But these
cases were not even cited in plaintiff’s opposition memorandum to defendants’ summary
judgment motion and were cited by plaintiff for the first time at oral argument on the motion.
Moreover, these cases pertain to the breadth of the fair use doctrine as applied to unpublished
works. Nothing about them suggests that the same principles should be extended to expand the
breadth of copyright protection of non-fiction works. I conclude that plaintiff pressed an
objectively unreasonable copyright claim.
Plaintiff’s motivation for bringing the lawsuit is more difficult to divine. Generally
speaking, someone is improperly motivated when the claim is asserted not because of the
inherent merit of the claim, but rather because of some ulterior motive. See Agence Fr. Presse v.
Morel, 2015 WL 13021413, at *5 (S.D.N.Y. 2015). A desire to punish an alleged infringer by
bringing a good-faith infringement action is a reasonable basis for bringing an infringement
action. See Blanch v. Koons, 485 F. Supp. 2d 516, 518 (S.D.N.Y. 2007). Indeed, there is record

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“Plagiarism, which many people commonly think has to do with copyright, is not in fact a legal doctrine.
True plagiarism is an ethical, not a legal offense and is enforceable by academic authorities, not courts. Plagiarism
occurs when someone—a hurried student, a neglectful professor, an unscrupulous writer—falsely claims someone
else’s words, whether copyrighted or not, as his own.” Kindergartners Count, Inc. v. DeMoulin, 249 F. Supp. 2d
1233, 1251–52 (D. Kan. 2003) (quoting Black’s Law Dictionary 1170 (7th ed. 1999)).

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evidence to suggest this is what motivated plaintiff. See, e.g., Doc. #41-11 at 120–21 (stating that
he was “furiously pissed off” after reading defendants’ book, which he “perceived to be my book
without my name on the cover”); id. at 124 (stating “I don’t know what the law holds” but “lots
of [plaintiff’s manuscript] ended up in [defendants’] book without my knowledge or
permission”).
But there is also evidence in the record that plaintiff was motivated as well by anger
about having been removed from the Turtle replica project. See e.g., Doc. #41-11 at 75 (“I mean,
these people took the project away from me, and I never received compensation or notification or
anything.”); id. at 91-92 (responding “I still want to get paid” in response to a question about
funding the replica project); id. at 298 (“That’s not what we are here for. This is about those
people stealing my project from me and then, in my opinion, publishing my work”).
It became clear at oral argument that plaintiff’s exclusion from the replica project still
angers plaintiff. Plaintiff described at the hearing what he termed the unaddressed “intellectual
property aspect” of this case. Doc. #125 at 49. He explained that the real issue was that
defendants Manstan and Frese had acquired plaintiff’s 1977 rendition of the replica “Turtle”
when they acquired a copy of his manuscript and then based their own rendition of the “Turtle”
on plaintiff’s rendition rather than the Bushnell original. Ibid. Plaintiff complained that
defendants “built a copy of my submarine and they wrote my name out of it.” Ibid. He
emphasized that the two replicas “pictorially they look so incredibly similar.” Id. at 51. Plaintiff
also cryptically alluded to what “Old Saybrook High School [where the replica was built] did to
me and what has happened since then.” Ibid.
On balance, I conclude that plaintiff’s principal motivation in pursuing this infringement
action was to exact revenge on Manstan and Frese for his removal from the later “Turtle” project

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that Manstan and Frese completed. My conclusion is further supported by evidence of settlement
negotiations that plaintiff chose to submit in opposition to this motion. Plaintiff requested, in
addition to money, that defendants insert an acknowledgement into each unsold copy of their
book. Doc. #85 at 2. The acknowledgement comprises three sentences: only one sentence recites
that defendants “based major portions of their book on [plaintiff’s] writing without his consent,”
while the remaining two sentences recite that plaintiff was kicked off the “Turtle” project and
that the project was unsuccessful. Ibid. Accordingly, I conclude that plaintiff advanced his
copyright claim largely for reasons that had nothing to do with protecting his rights in the
manuscript that he wrote (rather than his interest in having been part of the replica project).
Next, I conclude that an award of attorney’s fees advances considerations of
compensation and deterrence. It is obvious that defendants have suffered financially to defend a
meritless case litigated over a work that generated relatively little revenue for defendants.
Manstan and Frese realized only $3,000 in compensation for publishing their book. Doc. #109 at
16. Yet, to defend against this spite suit, Manstan and Frese have incurred more than $80,000 in
legal fees. Doc. #109-5 at 3. Defendants should be compensated for having to defend against this
objectively unreasonable claim. In addition, people who have shared experiences with other
people that might become the subject matter of an interesting non-fiction work should not have
to fear that a disgruntled or jilted erstwhile colleague or associate will pursue a meritless
copyright claim as a form of revenge.
Lastly, I turn to whether plaintiff’s claim was frivolous. Although the frivolousness factor
is separate and distinct from the objective unreasonableness factor, “[t]he line separating them is
not, however, well-defined,” and frivolousness may amount to “a particularly intense form of
objective unreasonableness.” TCA Television Corp. v. McCollum, 2017 WL 2418751, at *14

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(S.D.N.Y. 2017). While I have no doubt that plaintiff’s claim was objectively unreasonable, I am
reluctant to conclude that his claim was no less than frivolous. I need not make such a finding in
order to award attorney’s fees and costs. See Zamoyski v. Fifty–Six Hope Road Music Ltd., Inc.,
767 F. Supp. 2d 218, 224-25 (D. Mass. 2011). Even if plaintiff’s claim was not frivolous, I
conclude that an award of attorney’s fees and costs is appropriate in this case.
Attorney Sanctions under 28 U.S.C. § 1927 and the Court’s Inherent Power
In a copyright action, a court may hold a party and his counsel jointly and severally
liable for attorney’s fees and costs if such is an award is made under both 17 U.S.C. § 505 and 28
U.S.C. § 1927. See 16 Casa Duse, LLC v. Merkin, 791 F.3d 247, 264 (2d Cir. 2015). Under 28
U.S.C. § 1927, a court may impose sanctions on an attorney who “multiplies the proceedings in
any case unreasonably and vexatiously.” A court may also impose sanctions pursuant to its
inherent power. A sanction under § 1927 may only be imposed against an attorney, while the
Court may invoke its inherent authority to sanction an attorney as well as a party. See Schlaifer
Nance & Co. v. Estate of Warhol, 194 F.3d 323, 336 (2d Cir. 1999). The standard for sanctions
under either authority is for all practical purposes the same. See Baker, 431 F. Supp. 2d at 363
(S.D.N.Y. 2006), aff’d, 249 F. App’x 845 (2d Cir. 2007).
The Second Circuit has described the task of awarding sanctions as “one of the most
difficult and unenviable tasks for a court.” Schlaifer Nance & Co., Inc., 194 F.3d at 337. In order
to impose sanctions against an attorney, the court must find that the challenged claim lacked a
colorable basis and that the claim was brought in bad faith. Id. at 336. In determining whether to
award sanctions under § 1927, the questions is whether the “the attorney’s actions are so
completely without merit as to require the conclusion that they must have been undertaken for

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some improper purpose.” Johnson v. Univ. of Rochester Med. Ctr., 642 F.3d 121, 125–26 (2d
Cir. 2011).
I conclude that the heightened standard of bad faith on the part of plaintiff’s attorneys has
not been satisfied in this case. While I do find that plaintiff himself brought this action, in
principal part, with an improper motive, the record does not show that plaintiff’s counsel shared
this same motive. It is true that bad faith on the part of an attorney, as would support an award of
costs and fees under § 1927, may be inferred when actions “are so completely without merit as to
require the conclusion that they must have been undertaken for some improper purpose such as
delay.” Enmon v. Prospect Capital Corp., 675 F.3d 138, 143 (2d Cir. 2012). As far as I can tell,
plaintiff’s counsel believed plaintiff’s lay conclusion that his manuscript had been copied and
then filed this action without performing the necessary factual and legal research before
proceeding with the infringement claim. This was obvious incompetence but not necessarily bad
faith.
Plaintiff’s counsel’s lack of familiarity with his own case is evident from the record.
Plaintiff’s counsel exchanged letters with defense counsel regarding the plaintiff’s cease and
desist demand prior to filing a federal court complaint. In a letter dated April 8, 2013, plaintiff’s
counsel stated to defense counsel that there were substantial similarities between the two works,
“including the copying of obscure footnotes and even errors found in the copyrighted manuscript
that were subsequently corrected.” Doc. #46-3 at 7. The allegation of a copied error was
withdrawn, Doc. #41-11 at 148–49, and no evidence of copying obscure footnotes was ever
produced. I queried plaintiff’s counsel on this point at oral argument and he represented that “the
understanding certainly changed” during “the course of a couple years of discovery” since the
case commenced. Doc. #125 at 39. It is far from clear to me how counsel’s understanding of the

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central issue—substantial similarity—could evolve over time; counsel had the opportunity—in
fact, the duty—to investigate at the start whether plaintiff had a genuine claim of substantial
similarity by reviewing the works, which he had available before the litigation began.
According to plaintiff’s counsel, “it’s as simple as Mr. Frese [defendant] had a copy of
the book and was a co-author and there’s similarities of content.” Id. at 40. But in an
infringement action, the matter is not as simple as access and similarity of content; it is whether
protected expression was usurped. See Zalewski, 754 F.3d at 102. Counsel’s failure to appreciate
this does not, however, bespeak bad faith. It is simply incompetence. Plaintiff was ill-served by
counsel who effectively enabled his vendetta to press a meritless lawsuit for petty and spiteful
reasons.2
I do not agree with defendants that plaintiff’s counsel’s conduct in this litigation
demonstrated a purpose to delay or harass. First, with respect to plaintiff’s motion to amend to
add a claim for copyright infringement of a photograph, I acknowledge that I denied his motion
to amend because plaintiff was not diligent in raising this claim in light of the facts that were
known or should have been known “well before the commencement of the suit.” Leary, 2015
WL 521497, at *4. But I have no reason to question plaintiff’s counsel’s sworn affidavit that
states he was unaware that plaintiff owned the photograph before October 2013. Doc. # 110-1 at
2 (¶¶ 10–11).
Nor does the fact that plaintiff moved for summary judgment on the new claim before the
Court ruled on the motion to amend suggest plaintiff’s counsel was vexatiously multiplying the
proceedings. The fact that the motion was filed on the eve of the deadline for dispositive motions

2

Plaintiff’s counsel’s reliance on the expert testimony of an English professor emphasizes this point. While
her opinion would be relevant to an inquiry of academic integrity, the expert lacked the expertise to discern whether
the two works were substantially similar for purposes of the Copyright Act. This, too, counsel should have been well
aware of and avoided if counsel were minimally competent about the litigation of a copyright action.

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implies an attempt to comply with the Court’s scheduling order. In fact, the Court scheduled oral
argument on the motion despite the fact that the motion pertained to a count not yet part of the
operative complaint. Doc. #59.
With respect to the motion hearing set for January 20, 2015, plaintiff is correct that the
original electronic notice sent on December 5, 2014, did not state that argument would be heard
on defendants’ motion for summary judgment, though the notice was updated on December 8 to
include defendants’ motion. Ibid. Next, I find nothing improper in the development of plaintiff’s
expert’s report, contrary to defendants’ allegation. Finally, plaintiff’s counsel’s citation of cases
for the first time at oral argument bespeaks counsel’s lack of prior due diligence rather than bad
faith.
Unfortunately, in view of the varying standards for an award under 17 U.S.C. § 505 and
28 U.S.C. § 1927, because plaintiff’s counsel from the law firm of St. Onge, Steward, Johnston
& Reens was merely incompetent but did not act in bad faith, plaintiff is left holding the bag for
attorney’s fees and costs. Plaintiff sought out counsel in an effort to vindicate rights he believed
he enjoyed under the law. Plaintiff thought he was getting legal counsel, but instead he is saddled
with a monetary liability. Because his counsel did not act in bad faith, I cannot provide relief by,
for example, ordering plaintiff’s counsel to pay the fee award. But, as plaintiff’s counsel
observed at oral argument, plaintiff may have “other avenues available” such as a malpractice
claim in state court to share the financial burden for blindly leading him down this road in the
litigation of an objectively unreasonable claim. Doc. #125 at 45. Accordingly, I will deny
defendants’ motion for sanctions against plaintiff’s counsel.

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Attorney’s Fees and Costs
An award of attorney’s fees under 17 U.S.C. § 505 “must be reasonable in terms of the
circumstances of the particular case.” Mathew Bender & Co., 240 F.3d at 121. The lodestar
method is the appropriate method for determining an award of attorney’s fees pursuant 17 U.S.C.
§ 505. See Vargas v. Pfizer, Inc., 352 F. App’x 458, 460 (2d Cir. 2009). Under the lodestar
method, a fee award is determined by multiplying the number of hours reasonably expended on
the litigation by a reasonable hourly rate. See Baker, 431 F. Supp. 2d at 360. Additionally, the
Court may consider the financial resources of the party from whom a fee award is sought in
fixing an award. See Contractual Obligation Prods., LLC v. AMC Networks, Inc., 546 F. Supp.
2d 120, 132 (S.D.N.Y. 2008).
Defendants Manstan and Frese have incurred $88,710 in fees and costs to the law firm
Brown, Paindiris, & Scott, LLP (BPS). Plaintiff does not challenge the hourly rates charged by
Attorney Van Gootkin ($225 per hour in 2013, $250 in 2014-17, and $275 in 2017), Attorney
Rintoul ($325 per hour), Attorney Weber ($100 per hour), paralegals ($95 per hour), and law
clerks ($90 per hour). I conclude that a reasonable rate is $225 per hour for Attorney Van
Gootkin, $325 per hour for Attorney Rintoul, $100 per hour for Attorney Weber, $95 per hour
for paralegal work, and $90 per hour for law clerk work. On this case, Attorney Von Gootkin
worked 262.6 hours; Attorney Rintoul worked 1 hour; Attorney Weber worked 3.7 hours;
paralegals worked 54.05 hours; and law clerks worked 40.85 hours.
I also conclude that some of the hours billed by defense counsel were unreasonable. First,
I will exclude time spent related to defendants’ counterclaims and their motion for bond.
Therefore, I will reduce the number of hours for Attorney Van Gootkin by 17.6 hours, the
number of hours for law clerks by 0.3 hours, and the number of paralegal hours by 0.8. Because

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the first motion for attorney’s fees and costs was denied without prejudice for failure to include
billing records, I will reduce the total number of hours expended on the motion and renewed
motion by half. Therefore, I will make an additional reduction in total hours for Attorney von
Gootkin of 23.8 hours, for clerks of 3.15 hours, and for paralegal work of 8.25 hours.3
After these reductions, defendants are entitled to a fee award based on 221.2 hours of
work by Attorney Von Gootkin, 37.4 hours of work by law clerks, 45 hours of hours of paralegal
work, leaving the number of hours worked by Attorneys Weber and Rintoul unchanged. This
results in a fee award of $49,770 for the work of Attorney von Gootkin, $3,366 for the work of
law clerks, $4,275 for the work of paralegals, $325 for the work of Attorney Rintoul, and $370
for Attorney Weber. This results in a total attorney’s fee award for work performed by BPS of
$58,106.
Defendants also seek an award of $17,337 in costs expended by BPS litigating this case.
Plaintiff argues that defendants are not entitled to an award of costs that include the cost of legal
research fees. Plaintiff is correct; legal research fees are not taxable as costs. D. Conn. L. Civ. R.
53(c)7(xi). Accordingly, I will reduce the cost award by $3,508.11. I will also reduce the cost
award by $51.95, the total amount expended on fees to the Marshal because defendants failed to
furnish the required supporting documentation. See D. Conn. L. Civ. R. 53(c)1. The total award
for costs expended by BPS is $13,776.94. Therefore the total costs and attorney’s fees award for
work performed by BPS is $71,882.94.

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Plaintiff also argues that Manstan and Frese are not entitled to attorney’s fees for any time spent seeking
attorney’s fees because counsel for Westholme Publishing did not bill for time spent seeking attorney’s fees. I
disagree. Prevailing parties are entitled to seek attorney’s fees for the fee application. See Quaratino v. Tiffany &
Co., 166 F.3d 422, 428 (2d Cir. 1999). And the grace of counsel for one defendant does not bear upon the
reasonableness of a co-defendant’s counsel’s billing practices.

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The law firm Bakos & Kritzer represented Westholme Publishing, Inc. Attorney Kritzer,
a name partner of the firm, billed at $495 per hour. Attorney McPhee is an associate at the firm
with 14 years of experience who billed at $225 per hour. Plaintiff has not challenged the
reasonableness of these hourly rates. I conclude that Attorney McPhee’s hourly rate is
reasonable. But, as to Attorney Kritzner, the record does not reveal his experience. I conclude
that a rate of $325 is reasonable.
Attorney Kritzner billed a total of 226.9 hours.4 Attorney McPhee billed a total of 111.6
hours. I will deduct the total hours spent by each attorney on the motion for bond and litigating
defendants’ counterclaims. I will deduct 19.45 hours for Attorney Kritzner for a total of 207.45,
and 12.9 hours for Attorney McPhee for a total of 98.7 hours. Multiplying the reasonable hours
worked by the reasonable hourly rate for each attorney yields a total fee award of $67,421.25 for
work performed by Attorney Kritzner and $22,207.50 for work performed by Attorney McPhee.
Plaintiff does not contest the costs of $1,004.34 billed by the Bakos & Kritzer law firm. In sum,
defendants are entitled to a reasonable costs and fee award of $90,633.09 for the work performed
by the Bakos & Kritzer law firm.
This amounts to a total award of $162,516.03.5 Plaintiff argues that he cannot afford to
pay a substantial fee award in this case because he collects only a social security retirement
check each month and owns nothing in assets greater than his Hyundai car valued at $5,000.
Doc. #110 at 19–20; Doc. #121. On the other hand, plaintiff may well have avenues for relief

4

This sum does not include the total number hours documented in the timesheet that were billed at no

charge.
5

I acknowledge that plaintiff, in addition to his infringement claim, advanced a claim under the
Connecticut Unfair Trade Practices Act (CUTPA). Ordinarily, a reduction in the overall award to account for time
spent on non-copyright claims is appropriate. See Pinkham v. Camex, Inc., 84 F.3d 292, 294 (8th Cir. 1996).
Defendants moved for summary judgment on plaintiff’s CUTPA claim on the ground that, absent a violation of the
Copyright Act, plaintiff’s CUTPA claim fails, dedicating all of three sentences to their argument. Because it is clear
that any time spent defending against plaintiff’s CUTPA claim was de minimis, I decline to discount the award for
time spent on the claim.

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against his counsel from the law firm of St. Onge, Steward, Johnston & Reens because of their
basic incompetence in deciding to pursue this copyright action. After considering plaintiff’s age
and lack of resources as well as the possibility that his incompetent counsel may stonewall
efforts he might make to have them share the cost burden, I conclude that it would be inequitable
to impose the entire large award against plaintiff. See, e.g., Vargas v. Transeau, 2008 WL
3164586, at *4 (S.D.N.Y. 2008) (reducing fee award by almost 78 percent in light of plaintiff’s
meager income), aff’d sub nom. Vargas v. Pfizer, Inc., 352 F. App’x 458 (2d Cir. 2009). Here, “a
lesser sum assessed would [fulfill] the statute’s deterrent purpose without subjecting [plaintiff] to
financial ruin.” Faraci v. Hickey-Freeman Co., 607 F.2d 1025, 1028-29 (2d Cir. 1979).
Therefore, I will reduce the fee award by one-third to a total of $108,344.02.
CONCLUSION
Defendants’ Joint Motion for Attorney’s Fees and Costs (Doc. #109) is GRANTED in
part and DENIED in part. Defendants’ motion is DENIED to the extent it seeks sanctions against
plaintiff’s counsel. The motion is GRANTED to the extent it seeks a costs and fees award
pursuant to 17 U.S.C. § 505. Defendants are awarded $108,344.02 in costs and fees.
It is so ordered.
Dated at New Haven this 27th day of March 2018.
/s/ Jeffrey Alker Meyer
Jeffrey Alker Meyer
United States District Judge

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