Cambridge University Press et al v. Patton et al

Filing 458

RESPONSE in Opposition re 455 MOTION for Leave to Supplement the Detailed Request for Attorneys' Fees and Costs filed by Cambridge University Press, Oxford University Press, Inc., Sage Publications, Inc.. (Rains, John)

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA,
ATLANTA DIVISION

CAMBRIDGE UNIVERSITY PRESS, et
al.,
Plaintiffs,

Civil Action No. 1:08-CV-1425-ODE

– vs. –
MARK P. BECKER, in his official
capacity as Georgia State University
President, et al
Defendants.
PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION FOR LEAVE
TO SUPPLEMENT THE DETAILED REQUEST FOR ATTORNEYS’ FEES
AND OTHER COSTS
Plaintiffs Cambridge University Press, Oxford University Press, Inc., and
SAGE Publications, Inc. (collectively, “Plaintiffs”) submit this opposition to
Defendants’ Motion for Leave to Supplement the Detailed Request for Attorneys’
Fees and Other Costs, Doc. No. 455 (Sept. 17, 2012).
BACKGROUND
Defendants were directed to file a detailed request for an award of attorneys’
fees and other costs no later than August 24, 2012. See Order, Doc. No. 441 at 14
(Aug. 10, 2012). Defendants did so. See Defendants’ Memorandum in Support of

Defendants’ Detailed Request for an Award of Attorneys’ Fees and Other Costs,
Doc. No. 444 (Aug. 24, 2012). Defendants’ submission included a bill for the
period preceding March 2009. Id. at Exhibit 1. That bill did not indicate the time
spent on or the amount billed for each time entry. Id. The parties met and
conferred concerning Plaintiffs’ objections on September 5, 2012, but did not reach
agreement except as to fees incurred in connection with Defendants’ sovereign
immunity defense, with respect to which Defendants withdrew their fee request.
See Defendants’ Second Supplemental Statement to Defendants’ Detailed Request
for an Award of Attorneys’ Fees and Other Costs, Doc. No. 448 at 2 (Sep. 7,
2012). After the meet and confer, without objection from the Plaintiffs,
Defendants twice supplemented their Detailed Request for an Award of Attorneys’
Fees and Other Costs on September 6, 2012, Doc. No. 446, and September 7, 2012,
Doc. No. 448. Neither supplement included a detailed bill indicating the time
spent on or the amount billed for each time entry prior to March 2009. See Doc.
Nos. 446 and 448.
Plaintiffs timely submitted their objections to Defendants’ Request for
Attorneys’ Fees and Costs on September 10, 2012. See Plaintiffs’ Objections to
Defendants’ Request for Attorneys’ Fees and Costs, Doc. No. 451 (“Plaintiffs’
Objections”) (Sep. 10, 2012). In their objections – as they had done during the
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meet and confer – Plaintiffs argued that Defendants are not entitled to recover fees
or costs incurred prior to February 17, 2009, the date on which Georgia State
University announced the new copyright policy that was the subject of the trial in
this action. Id. at 6-7. Plaintiffs’ objections highlighted Defendants’ failure to
provide a detailed bill for the period prior to March 2009. Id. That failure has
meant Plaintiffs have been unable to discern what time or amount billed if any
prior to February 17, 2009 is relevant to the Defendants’ request for fees.
Plaintiffs, therefore, calculated the appropriate fee reduction by determining the
percentage of the time period covered by the bill represented by the period up to
February 17, 2009 (82.9%) and applied that percentage to the total amount billed.
Id.
The day after the Court’s deadline for Plaintiffs’ objections, September 11,
2012, Defendants without objection from the Plaintiffs supplemented their
Detailed Request for an Award of Attorneys’ Fees and Other Costs for the third
time. See Doc. No. 453 (Sep. 11, 2012). This third supplement responded to
issues raised in Plaintiffs’ objections, but again failed to include a detailed bill
indicating the time spent on or the amount billed for each time entry prior to March
2009. Id.

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At the September 14, 2012 hearing on Defendants’ fee application,
Defendants initially represented to the Court that they had submitted a bill showing
the amount billed for each time entry prior to March 2009. Transcript of
Proceedings (“9/14 Tr.”) at 21:9 (Sept. 14, 2012). Only when Plaintiffs
highlighted that even after four filings, bill had not been submitted by Defendants
that included the time spent on or the amount billed for each entry, id. at 21:13-23,
did Defendants acknowledge that they had submitted the wrong bill for the period
prior to March 2009. Id. at 29:23-29:1. In response to Defendants’ request to
supplement its bill yet again, the Court requested that Defendants submit a motion
to supplement their fee application for the fourth time to include the missing detail
as to each time entry. Id. at 37:10-25. On September 17, 2012, Defendants did so.
See Doc. No. 455 (Sep. 17, 2012).
ARGUMENT
I.

THE COURT SHOULD DENY DEFENDANTS’ MOTION FOR
LEAVE TO SUPPLEMENT THE DETAILED REQUEST FOR
ATTORNEYS’ FEES AND OTHER COSTS
Defendants’ conduct in filing their Request for Attorneys’ Fees and Costs

and their three subsequent supplements – four strikes, rather than the customary
three – falls well outside the limits of acceptable conduct in this case. Throughout
this litigation, Defendants have, at various times and for various reasons, attempted
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to preclude Plaintiffs from introducing evidence – including for the reason that
Plaintiffs’ proposed evidence was untimely. For example, Defendants argued that
Plaintiffs should be precluded from introducing evidence related to certain
copyright infringements because “[d]espite ample opportunity to do so, Plaintiffs
[had] not provided” various copyright registration certificates. See Defendants’
Motion in Limine to Exclude Evidence of Alleged Infringement of ImproperlyAsserted Copyrights and Memorandum of Law in Support Thereof, Doc. No. 277
at 5 (Apr. 29, 2011). The Court agreed, granting Defendants’ motion and
excluding the copyright registration certificates that Plaintiffs had allegedly failed
to provide in a timely manner. See Order, Doc. No. 310 at 3 (May 12, 2011).
Similarly, when Plaintiffs sought to amend their trial exhibit list to add
several documents concerning ownership or licensing of the works at issue in
response to issues raised by Defendants’ motion in limine, Defendants argued that
it was too late for Plaintiffs to add exhibits, especially given that “Plaintiffs or
Plaintiffs’ affiliates at all times had the relevant documents and … failed to
produce them.” See Defendants’ Brief in Opposition to Plaintiffs’ Motion to
Amend Their Trial Exhibit List, Doc. No. 309 at 6 (May 12, 2011). The Court
agreed, noting that “Plaintiffs may not amend their trial exhibit list to add any of

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the other documents Plaintiffs seek to add.” Order, Doc. No. 311 at 2 (May 13,
2011).
Defendants should be held to their own standard for timeliness. The bill that
they seek to file now has always been in Defendants’ possession, and Defendants
can point to no reason other than their own “mistake” for not supplying the bill to
the Court and the Plaintiffs in any of their four filings to date. 9/14 Tr. at 29:25.
In fact, despite the need for finality on this matter, Defendants have already
supplemented three times on the issue of fees without objection from Plaintiffs –
including after Plaintiffs had already filed a response to Defendants’ Detailed
Request for an Award of Attorneys’ Fees and Other Costs highlighting
Defendants’ failure to provide a detailed bill including all time spent or amount
billed for the period prior to March 2009. See Plaintiffs’ Objections at 6-7.
Defendants’ third supplement responded to other issues raised in Plaintiffs’
Objections, but again did not include a detailed bill.
As the Court noted during the September 14, 2012 hearing on fees, “to the
extent possible, [the Court has tried to be] pretty strict with … [its] rulings.” 9/14
Tr. at 37:14-15. Unlike the genuine dispute over what constituted alternative proof
of the existence of a valid copyright, here Defendants have no justification for their
actions other than their own “mistake.” Id. at 29:25. Granting Defendants’ Motion
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for Leave to Supplement the Detailed Request for Attorneys’ Fees and Other Costs
would be inconsistent with the Court’s previous strict rulings. Accordingly,
Defendants’ conduct should not be excused and their Motion for Leave should be
denied.
II.

DEFENDANTS FAILED TO MEET THEIR BURDEN THEREFORE
FEES AND COSTS FOR THE PERIOD PRIOR TO MARCH 2009
SHOULD BE DENIED
Defendants have failed to meet their burden in producing evidence of their

attorneys’ fees and other costs incurred prior to March 2009. In this Circuit, “[t]he
party seeking attorney’s fees bears the burden of producing satisfactory evidence
that the requested rate is in line with prevailing market rates. By satisfactory
evidence … [the court meant] more than the affidavit of the attorney performing
the work.” Loranger v. Stierheim, 10 F.3d 776, 781 (11th Cir. 1994) (internal
citations omitted). Defendants’ request for fees falls woefully short of producing
such satisfactory evidence for period prior to March 2009. Defendants’ March
2009 bill, covering the period August 2008 – March 2009, is devoid of the most
critical information (e.g., whether the task relates to the pre-2009 GSU copyright
policy), and accordingly, does not allow the Court or the Plaintiffs to ascertain
what (if any) time billed before the end of March 2009 should even be considered
in the Defendants’ request for fees. By not supplying a detailed bill with their
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request, or any one of the three supplements already submitted, Defendants have
failed to meet their burden.
Defendants have failed on four occasions to produce sufficient evidence to
meet their burden on the issue of fees for the period prior to March 2009, and thus,
their request for attorneys’ fees for the period prior to March 2009 should be
denied.
III.

PLAINTIFFS MAINTAIN THEIR OBJECTION TO THE
RECOVERY OF FEES AND COSTS INCURRED PRIOR TO
FEBRUARY 17, 2009
Even if the Court were to grant Defendants’ Motion for Leave to

Supplement the Detailed Request for Attorneys’ Fees and Other Costs, Plaintiffs
maintain their objection to inclusion of any fees or costs incurred prior to February
17, 2009, the date on which Georgia State University announced the new copyright
policy that was the subject of the trial in this action. For reasons stated in
Plaintiffs’ September 10 submission: Defendants are not prevailing parties in
relation to a policy they abandoned during the litigation and that was not at issue at
trial. See Plaintiffs’ Objections at 6-7. Defendants have offered no response to
this argument.
At the September 14, 2012 hearing on fees, Defendants’ only basis for the
inclusion of fees and costs incurred prior to February 17, 2009 “is because that
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work flowed through the entire lawsuit.” 9/14 Tr. at 8:4-7. Defendants miss the
point. As the Court stated in its August 10, 2012 order “the only precondition to
the award of attorney’s fees is that the party be a prevailing one.” See Order, Doc.
No. 441 at 13 (Aug. 10, 2012) (citing Sherry Mfg. Co. v. Towel King of Fla., Inc.,
822 F.2d 1031, 1034 (11th Cir. 1987)). As the Court found, Plaintiffs prevailed to
the extent that “Georgia State’s changes in its copyright policy were triggered
primarily by the filing of the instant lawsuit.” Id. at 12.
It follows that Defendants are not the prevailing party at least as to events
preceding February 17, 2009, and are not entitled to an award of fees or costs for
work undertaken prior to February 17, 2009. Therefore, should the Court allow
Defendants to supplement their request for the fourth time, all fees and costs
incurred prior to February 17, 2009 should be excluded from any award.
CONCLUSION
For the foregoing reasons Plaintiffs respectfully submit that Defendants’
Motion for Leave to Supplement the Detailed Request for Attorneys’ Fees and
Other Costs should be denied. In the alternative, even if the Court grants
Defendants’ motion Plaintiffs respectfully request Defendants’ fee application be
reduced by $333,519.09.

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Respectfully submitted this 27th day of September, 2012.
/s/ John H. Rains IV
Edward B. Krugman
[e-mail]
Georgia Bar No. 429927
John H. Rains IV
[e-mail]
Georgia Bar No. 556052
BONDURANT, MIXSON & ELMORE, LLP
1201 West Peachtree Street NW
Suite 3900
Atlanta, Georgia 30309
Telephone: [phone]
Facsimile: [phone]
R. Bruce Rich (pro hac vice)
Randi Singer (pro hac vice)
Jonathan Bloom (pro hac vice)
Todd D. Larson (pro hac vice)
WEIL, GOTSHAL & MANGES LLP
767 Fifth Avenue
New York, New York 10153
Telephone: [phone]
Attorneys for Plaintiffs

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CERTIFICATE OF SERVICE
I hereby certify that I have this day filed the foregoing PLAINTIFFS’
OPPOSITION TO DEFENDANTS’ MOTION FOR LEAVE TO
SUPPLEMENT THE DETAILED REQUEST FOR ATTORNEYS’ FEES
AND OTHER COSTS with the Clerk of Court using the CM/ECF filing system
which will send e-mail notification of such filing to opposing counsel as follows:
John W. Harbin, Esq.
Natasha H. Moffitt, Esq.
Mary Katherine Bates, Esq.
KING & SPALDING LLP
1180 Peachtree Street
Atlanta, Georgia 30309
Katrina M. Quicker, Esq.
Richard W. Miller, Esq.
BALLARD SPAHR, LLP
999 Peachtree Street, Suite 1000
Atlanta, Georgia 30309
Anthony B. Askew, Esq.
Stephen M. Schaetzel, Esq.
MCKEON, MEUNIER, CARLIN & CURFMAN, LLC
817 W. Peachtree Street, Suite 900
Atlanta, Georgia 30308
Mary Jo Volkert, Esq.
Assistant State Attorney General
40 Capitol Square
Atlanta, Georgia 30334

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This 27th day of September, 2012.
/s/ John H. Rains IV
John H. Rains IV

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