Bertam Music Co et al v P & C Enterprises Inc et al

Filing 65

OPINION entered by Chief Judge Michael P. McCuskey on 8/29/2011. Plaintiff's are awarded attorneys' fees in the amount of $77,001.25 and costs in the amount of $7,107.99. Plaintiffs' Motion to Substitute Parties for Decease d Defendant Lonnie E. Clark 55 is GRANTED in part and reserved in part. The Motion 55 is GRANTED as to Defendant J.W. Pirtle and Pirtle is substituted for Defendant Lonnie E. Clark. Plaintiffs are allowed 30 days to file a motion seeking judgme nt against J.W. Pirtle, as successor of Lonnie Clark. A hearing will be held on October 12, 2011, at 3:30 p.m. to consider the Objection filed by Joan Clark, Jeffery Clark and Lonnie E. Clark II to the Motion to Substitute Parties 55 . See written opinion. (DE, ilcd)

E-FILED

Monday, 29 August, 2011 04:45:23 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
URBANA DIVISION
_____________________________________________________________________________
BERTAM MUSIC CO., FLYTE TYME
)
TUNES, EMI APRIL MUSIC INC., SOUP
)
SANDWICH MUSIC, GOLD & IRON MUSIC )
PUBLISHING, XM MUSIC, LELLOW
)
PRODUCTIONS INC., BOOK OF DANIEL
)
MUSIC, EMI VIRGIN MUSIC, INC., MASS
)
CONFUSION MUSIC, WB MUSIC CORP.,
)
2000 WATTS MUSIC, INC., TONI ROBI
)
MUSIC, RODSONGS, JOBETE MUSIC CO., )
INC., BLACK BULL MUSIC, INC.,
)
CANCELLED LUNCH MUSIC, UNIVERSAL- )
POLYGRAM INTERNATIONAL
)
PUBLISHING, INC., DE SWING MOB, INC., )
ACROSS 110TH STREET PUBLISHING, )
AL B. SURE INDUSTRIES, INC., E/A MUSIC, )
INC., MONTY SEWARD PUB., CO., MAKE
)
IT BIG MUSIC, BROCKMAN ENTERPRISES,)
INC. (LIBREN MUSIC DIVISION), BRENDA )
RICHIE PUBLISHING, and UNCLE
)
RONNIE’S MUSIC COMPANY, INC.,
)
)
Plaintiffs,
)
v.
)
)
P & C ENTERPRISES, INC., LONNIE E.
)
CLARK, and J.W. PIRTLE,
)
)
Defendants.
)

Case No. 09-CV-2253

OPINION
This case is before the court for ruling on the amount of attorneys’ fees to be awarded to
Plaintiffs and on Plaintiffs’ Motion to Substitute Parties for Deceased Defendant Lonnie E. Clark
(#55). Following careful consideration of the arguments of the parties, Plaintiffs are awarded
attorneys’ fees in the amount of $77,001.25 and costs in the amount of $7,107.99 from Defendants
P & C Enterprises, Inc. (P & C) and J.W. Pirtle (Pirtle). In addition, Plaintiffs’ Motion to Substitute

Parties (#55) is GRANTED as to Pirtle. A hearing will be held on September 8, 2011, at 3:30 p.m.
regarding Joan Clark’s Objection to Motion to Substitute Parties (#63).
BACKGROUND
On July 5, 2011, this court entered an Opinion (#51) in this case. This court granted
Plaintiffs’ Motion for Summary Judgment (#35) and entered judgment in favor of Plaintiffs and
against Defendants P & C and Pirtle. This court concluded that the copyright infringement in this
case was willful and awarded $48,000 in statutory damages, consisting of $3,000 for each of the 16
instances of copyright infringement, plus post-judgment interest.
This court also concluded that Plaintiffs made a clear showing of past infringement and,
frankly, not just a substantial likelihood but in actuality almost a certainty of future infringement.
This court noted that WBCP, the radio station controlled by Defendants P & C and Pirtle, continues
to broadcast music and makes no efforts to ensure that it is not broadcasting copyrighted music
without authorization. In considering all of the relevant factors, this court found that a permanent
injunction is appropriate under the circumstances of this case. This court therefore entered a
permanent injunction, pursuant to 17 U.S.C. § 502, prohibiting Defendants P & C and Pirtle and/or
their officers, agents, servants, employees, attorneys, heirs, successors, assigns, and other persons
who are in active concert or participation with them from publicly performing any and all of the
musical compositions in the repertory of the American Society of Composers, Authors and
Publishers (ASCAP) over WBCP or any other station or any other broadcast facility owned or
operated by them, unless they shall have obtained permission in advance of the performance from
the copyright owners involved or a license from ASCAP, their performing rights society.
This court also concluded that Plaintiffs are entitled to their reasonable attorneys’ fees and

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costs in litigating this case pursuant to 17 U.S.C. § 505. This court noted that an award of attorneys’
fees and costs is appropriate in order to deter any further infringement on the part of Defendants,
particularly because they have engaged in willful infringement. This court further stated that
attorneys’ fees are appropriate because Defendants were successfully sued for copyright
infringement twice before and have not, in this action, asserted any non-frivolous defenses or
provided any explanation for their decision to perform copyrighted songs after their license with
ASCAP was terminated. This court concluded that, in fact, the record in this case supports a finding
that Defendants treated the copyright laws with disdain. This court stated that, “[u]nder these
circumstances, attorney’s fees are an appropriate means of compensating Plaintiffs for enforcing
copyright laws and penalizing Defendants for willfully violating the law with no reasonable basis
or non-frivolous justification.” This court stated that the amount of Plaintiffs’ reasonable fees would
be determined once Plaintiffs’ counsel submitted an affidavit setting forth the attorneys’ fees and
costs billed in this case. This court allowed Plaintiffs’ counsel 14 days to file an affidavit. This
court also allowed Defendants P & C and Pirtle 14 days to file any objections to the amount of the
attorneys’ fees requested.
This court also denied the Motion to Dismiss (#36) seeking the dismissal of Defendant
Lonnie Clark from this action based upon his death on December 10, 2010. In doing so, this court
agreed with the conclusion of Magistrate Judge David G. Bernthal in his Report and
Recommendation that the 90-day clock set out in Rule 25(a) of the Federal Rules of Civil Procedure
had not started running and there was no basis for granting Clark’s motion to dismiss. This court
determined that, based upon the Seventh Circuit’s decision in Atkins v. City of Chicago, 547 F.3d
869, 873 (7th Cir. 2008), a notice of suggestion of death is not effective to start the 90-day clock for

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substituting the proper party under Rule 25(a) unless it is served on “nonparties with a significant
financial interest in the case, namely the decedent’s successors . . . or personal representative.” This
court noted that the court in Atkins stated that “the cases are unequivocal that an obviously
interested party [such as the spouse of the decedent] must be served for the 90-day clock to start
running.” Atkins, 547 F.3d at 873. This court held that because neither the Suggestion of Death
(#30) nor the Notice (#44) filed by Defendants’ counsel were served on Clark’s spouse or sons, the
90-day clock has not started running. This court therefore accepted the Report and Recommendation
(#46) and concluded that the Motion to Dismiss (#36) must be denied. This court then stated:
This does leave things in a rather uncertain posture, however,
since Defendants’ counsel has indicated that he reasonably believes
“that no representative has or will be appointed for the deceased
Defendant, Lonnie Clark.”1 If Plaintiffs wait to be informed of the
proper successor or representative for Clark, it appears they could be
waiting a very long time and the portion of this case related to the
claim against Clark would remain open and unresolved a very long
time as well.
This court notes that, generally, the proper party for
substitution is the person who has the legal right and authority to
defend against the claims brought against the deceased party. See
Fariss v. Lynchburg Foundry, 769 F.2d 958, 962 (4th Cir. 1985). Rule

1

Defendants’ counsel included this statement in the Notice (#44) he filed which also
listed the heirs of Lonnie Clark.
4

25(a) recognizes that the proper party usually will be the
representative of the decedent’s estate who has been appointed under
state law. The rule also uses the word “successor,” which indicates
that a person may be substituted as a party even though the person
has not been formally appointed as a representative or administrator.
See 6 James Wm. Moore et al., Moore’s Federal Practice § 25.12[3]
(Matthew Bender 3d ed. 2010). Defendants have pointed out that
Illinois law provides:
(2)

If a person against whom an action has been

brought dies and the cause of action survives and is
not

otherwise

barred,

his

or

her

personal

representative shall be substituted as a party. If no
petition has been filed for letters of office for the
deceased’s estate, the court, upon motion of a person
bringing an action and after the notice to the party’s
heirs or legatees as the court directs and without
opening

an

estate,

may

appoint

a

special

representative for the deceased party for the purposes
of defending the action. If a party elects to have a
special representative appointed under this paragraph
(2), the recovery shall be limited to the proceeds of
any liability insurance protecting the estate and shall

5

not bar the estate from enforcing any claims that
might have been available to it as counterclaims.
If a motion to substitute is not filed within 90 days
after the death is suggested of record, the action may
be dismissed as to the deceased party.
735 Ill. Comp. Stat. 5/2-1008(b)(2).

Defendants appear to be

suggesting that Defendant Clark must be dismissed because no
motion to substitute was filed within 90 days after Clark’s death was
suggested of record. However, Rule 25(a) governs the procedure for
substitution following a party’s death, even where the court must
apply state substantive law. Servidone Constr. Corp. v. Levine, 156
F 3d 414, 416 (2nd Cir. 1998). This court has already concluded that
the 90 day time period set out in Rule 25(a) has not begun to run.
This court also agrees with Plaintiffs that Defendants’ counsel has
been ordered to notify Plaintiffs’ counsel of the proper successor,
representative or other special administrator to substitute. This court
therefore concludes that Defendants’ counsel must make every
attempt to expeditiously determine the proper successor or
representative to substitute in this case. However, if this information
is not provided, Plaintiffs’ counsel also must make an effort to
determine the proper successor or representative so that a motion for
substitution of parties can be made as soon as possible and this case

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can be finally resolved.
ANALYSIS
I. MOTION TO SUBSTITUTE PARTIES
On August 4, 2011, Plaintiffs filed their Motion to Substitute Parties for Deceased Defendant
Lonnie E. Clark (#55) and a Memorandum of Law in Support (#56). Plaintiffs stated that
Defendants’ counsel had not complied with the court’s order to notify Plaintiffs’ counsel of the
proper successor, representative or other special administrator to substitute. Plaintiffs stated that,
therefore, they filed their Motion in an effort to comply with the court’s direction in the Opinion.
Plaintiffs noted that, in McSurely v. McClellan, 753 F.2d 88, 97-98 (D.C. Cir. 1985), the court
concluded that it was proper to substitute the surviving spouses of two decedents and refused to
require the plaintiffs to institute proceedings to name representatives of the estate. The court stated
that the “distributee of a distributed estate is a ‘proper party’ for substitution under Rule 25(a)(1).”
McSurely, 753 F.2d at 99; see also Hardy v. Kaszycki & Sons Contractors, Inc., 842 F. Supp. 713,
716-17 (S.D.N.Y. 1993); Gronowicz v. Leonard, 109 F.R.D. 624, 626 (S.D.N.Y. 1986). Plaintiffs
noted that the Notice (#44) filed by Defendants’ counsel stated that Clark’s “heirs surviving him
were Joan Clark (spouse), Urbana, Illinois; Jeffery L. Clark (son), Savoy, Illinois; and Lonnie E.
Clark, II, (son), Urbana, Illinois.” Plaintiffs further stated that Defendant’s counsel had notified
Plaintiffs that Pirtle acquired 100% of the stock of P & C following Clark’s death. Plaintiffs also
stated that, approximately four months prior to Clark’s death, while he was gravely ill, Clark and
his wife, Joan Clark, transferred title to the property owned by them to Joan Clark. Plaintiffs argued
that this evidence shows that Pirtle and Joan Clark are distributees of Clark’s estate and are proper
parties to be substituted for Clark. Plaintiffs asked this court to enter an order substituting Pirtle and

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Joan Clark for Defendant Lonnie E. Clark in this action.
Plaintiffs stated that they served copies of their Motion and Memorandum on Defendants’
counsel, Joan Clark, Jeffery L. Clark and Lonnie E. Clark, II. Plaintiffs stated that “[i]f this motion
is opposed by the non-parties listed . . . , Plaintiffs request that this Court set a hearing on this matter
on or after September 2, 2011.”
On August 22, 2011, Defendants’ counsel filed a Response and Objections to Appointment
of J.W. Pirtle as Substitute Defendant for Lonnie Clark, Deceased (#62). Defendants’ counsel, on
behalf of Pirtle, did not contest any of the facts set out by Plaintiffs or try to distinguish any of the
case law cited by Plaintiffs. Instead, amazingly, Defendants’ counsel argued that no substitution can
be made because Plaintiffs’ motion is untimely. Defendants’ counsel acknowledged that Judge
Bernthal had extended the time for Plaintiffs to substitute a party for Clark to “56 days after
Defendants’ counsel notified Plaintiffs’ counsel of the proper successor, representative or other
special administrator substitute.” Defendants’ counsel argued that the 56 days began running when
the Notice (#44) was filed on May 9, 2011, and had expired prior to the date Plaintiffs’ Motion to
Substitute Parties (#55) was filed on August 4, 2011.
This court is not sure if Defendants’ counsel has chosen not to read this court’s Opinion
(#51) or has just stubbornly refused to accept it. In any case, this court made clear that both Judge
Bernthal and this court concluded that the time for substituting parties had not begun to run. This
court reached this conclusion because neither the Suggestion of Death nor the Notice filed by
Defendants’ counsel were served on Clark’s spouse and sons, as required. This court clearly
concluded in its Opinion that the Notice (#44) did not start the time allowed for substituting a party.
This court also advised Defendants’ counsel to “make every attempt to expeditiously determine the

8

proper successor or representative to substitute in this case.” This has not been done. In addition,
this court stated that, if Defendants’ counsel did not provide the information, Plaintiffs’ counsel
should make an effort to determine the proper successor or representative so that a motion for
substitution of parties could be made as soon as possible and this case could be finally resolved.
That is exactly what Plaintiffs’ counsel has done in this case.
The objection filed by Defendants’ counsel on behalf of Pirtle requires no further discussion.
Plaintiffs’ Motion to Substitute Parties for Lonnie E. Clark (#55) is GRANTED as to J.W. Pirtle.
Pirtle is hereby substituted for Lonnie Clark as Lonnie Clark’s successor. Plaintiffs are allowed 30
days to file a motion seeking judgment against Pirtle as successor of Lonnie Clark.2
On August 23, 2011, Joan Clark, Jeffery L. Clark and Lonnie E. Clark II, through counsel,
filed an Objection to Motion to Substitute Parties (#63). Plaintiffs requested that this court set a
hearing if these nonparties filed an Objection to the substitution of Joan Clark for Defendant Lonnie
Clark. Accordingly, this case is set for a hearing on September 8, 2011, at 3:30 p.m., regarding the
Objection (#63).
II. ATTORNEYS’ FEES
As noted, this court concluded in its Opinion (#51) that Plaintiffs were entitled to recover
their attorneys’ fees from Defendants P & C and Pirtle. The only issue is the amount of fees to be
awarded based upon the circumstances of this case. On July 19, 2011, Plaintiffs’ counsel, Steven
J. Reynolds, filed his Affidavit in Support of Plaintiffs’ Application for Fees and Costs (#53).
Reynolds stated that he had maintained a daily record of time and services rendered on behalf of

2

This court notes that if Defendants’ counsel responds to this motion with yet another
challenge to the timeliness of the substitution, this court will consider the imposition of
sanctions.
9

Plaintiffs associated with litigating this case. Reynolds provided a summary of that information
which showed that: Reynolds spent 232.2 hours on the case and billed at an hourly rate of $350.00
until January 1, 2011, and an hourly rate of $365.00 after January 1, 2011, for a total of $82,786.50;
Monica L. Thompson spent 6.6 hours on the case and billed at an hourly rate of $450.00 for a total
of $2,9970.00; Renee M. Schoenberg spent 0.8 hours on the case and billed at an hourly rate of
$585.00 for a total of $468.00; and Patricia A. Merryweather spent 1.8 hours on the case and billed
at an hourly rate of $175.00 for a total of $315.00. The total attorneys’ fees sought were $86,539.50.
Reynolds also stated that Plaintiffs’ costs totaled $9,447.32. Reynolds attached detailed billing
records which included descriptions of the work undertaken and completed by attorneys and
paralegals for Plaintiffs as well as notes regarding the proceedings and the necessity of the work
performed. Reynolds also attached a detailed list of the costs incurred in this action.
In his Affidavit, Reynolds stated that, as to the reasonableness of the hourly rates, he has
been practicing law since 2007, specializing in intellectual property litigation, and is a member of
the General Bar of the United States District Courts for the Northern, Central and Southern Districts
of Illinois and of the Seventh Circuit Court of Appeals. Reynolds stated that his work in connection
with this case is supervised by Thompson, who is a partner in the law firm DLA Piper US (LLP) and
is a trial lawyer specializing in intellectual property litigation. Reynolds stated that he also
consulted with Schoenberg, an attorney in the firm who specializes in estate planning and probate,
on issues regarding seeking substitution for Clark. Reynolds stated that Plaintiffs are not seeking
fees for the time he spent conferring with Thompson about legal and strategic issues in this matter
or the time spent by Thompson supervising his work and the overall strategy of this litigation.
Reynolds further stated that Plaintiffs are not seeking fees associated with the work of Richard H.

10

Reimer, in-house counsel for ASCAP, who spent a substantial amount of time conducting legal
research and drafting and editing documents filed in this case. Reynolds also stated that it is
“important to note that a significant portion of the fees incurred by Plaintiffs in this action resulted
from Defendants’ delays in complying with the discovery process, the unavailability of defense
counsel during time-sensitive discovery disputes, and the undeveloped and generalized motions, and
responses to motions, filed by Defendants.” Reynolds stated:
I respectfully submit that an award to Plaintiffs of their costs
in the amount of $9,447.32 and attorneys’ fees in the amount of
$86,539.50 for services is reasonable for work including, but not
limited to, meeting and conferring with defense counsel in connection
with numerous discovery disputes; reviewing and producing
documents and a privilege log; conducting legal research; drafting and
reviewing briefs/responses related to multiple motions to compel,
motions to dismiss/strike, and multiple summary judgment motions
and responses; and participating in Court hearings (via telephone).
On August 2, 2011, Defendants Pirtle and P & C filed a document entitled “Second
Objections to Request for Attorneys Fees and Costs by Plaintiffs’ Attorney” (#54). Defendants
argued that an award of nearly $100,000 in attorneys’ fees and costs would constitute a “windfall”
in light of the large judgment resulting in substantial profits to Plaintiffs. Defendants explained that
the $48,000 in damages awarded was significantly greater than what Plaintiffs would have received
had Defendants continued to pay the fee of approximately $250.00 per month for a license to air the
copyrighted compositions. Defendants also stated that they did not realize any profits from the

11

airing of copyrighted material. Defendants also argued that some of the hours of attorneys’ fees
requested were excessive, redundant or unnecessary and that the hourly rates requested are
“excessive” and “not the usual and customary rate for services performed in this community.”
Defendants also argued that attorneys’ fees pertaining to the claim against Clark are not recoverable
as no judgment was entered against Clark. Defendants further argued that Plaintiffs were seeking
recovery of costs which are not recoverable under 28 U.S.C. § 1920. Defendants attached
documentation which they had included with their response to a prior request for attorneys’ fees
filed by Plaintiffs.
On August 5, 2011, this court granted Plaintiffs’ Motion to File a Reply (#57) and allowed
Plaintiffs until August 19, 2011, to file their Reply. On August 19, 2011, Plaintiffs filed a Reply
Memorandum in Support of Plaintiffs’ Application for Fees and Costs (#61). Plaintiffs argued that
Defendants’ contention that an award of substantial fees would be a “windfall” to Plaintiffs is
entirely without merit and directly contravenes principles embodied in the federal copyright statute.
Plaintiffs cited a recent decision of the First Circuit Court of Appeals where the court stated that
“[a]ttorneys’ fees are made available to prevailing parties in copyright cases in order to ‘vindicat[e]
the overriding purpose of the Copyright Act: to encourage the production of original literary, artistic,
and musical expression for the public good.’” Spooner v. EEN, Inc., 644 F.3d 62, 69 (1st Cir. 2011),
quoting Mag Jewelry Co. v. Cherokee, Inc., 496 F.3d 108, 122 (1st Cir. 2007). The court in Spooner
affirmed an award of $98,745.80 in attorneys’ fees even though the plaintiff only obtained an award
of statutory damages from the defendants in the amount of $10,000.00. Spooner, 644 F.3d at 68-69.
Plaintiffs pointed out that the Seventh Circuit has held that attorneys’ fees should be awarded when
the damages award is small because willful infringement involving small amounts of money cannot

12

be adequately deterred without an award of attorney’s fees. See Gonzalez v. Transfer Techs., Inc.,
301 F.3d 608, 609-10 (7th Cir. 2002). Plaintiffs pointed out that they incurred in excess of
$86,539.50 in attorneys’ fees and $9,447.32 in costs in obtaining damages from Pirtle and P & C of
$48,000. They argued that denying them the full amount of their fees would result not only in a
complete offset of their potential recovery but saddle Plaintiffs with just under $48,000.00 in
attorneys’ fees and costs.
Plaintiffs also argued that the hourly rates charged in this case are reasonable, noting that the
“attorney’s actual billing rate for comparable work is presumptively appropriate to use as the market
rate.” See People Who Care v. Rockford Bd. of Educ., 90 F.3d 1307, 1310 (7th Cir. 1996). Plaintiffs
stated that the hourly rates requested in this case are at or below the rate the attorneys normally bill
for comparative work. Plaintiffs stated that, additionally, “all attorneys billed at rates that are
reasonable for the applicable community; Chicago, Illinois, is the nearest community to central
Illinois in which the Intellectual Property bar is sufficiently established to handle copyright matters
pending in central Illinois, and the rates of Plaintiffs’ attorneys are reasonable in Chicago.”
Plaintiffs further argued that the total amount sought, $86,539.50, is reasonable for a matter such
as this pending in federal court.3 Plaintiffs also presented additional, persuasive arguments
regarding why the hours spent by attorneys on this case were not excessive, redundant, or
unreasonable. Plaintiffs also argued that 28 U.S.C. § 1920 does not apply to their request for costs
as they are seeking the “recovery of full costs” pursuant to 17 U.S.C. § 505.

3

This court notes that Defendants have gotten something of a break because Plaintiffs
are only requesting attorneys’ fees for the period beginning on February 24, 2010, when
Reynolds became involved in the case, and are not seeking attorneys’ fees for the period from
October 13, 2009, when their lengthy, detailed Complaint (#1) was filed, until February 24,
2010.
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Plaintiffs attached an affidavit from Reynolds which stated that “[a]ll attorneys for whom
Plaintiffs’ seek fees in this case applied a rate that is at or below the rate at which they normally bill
for comparable work on copyright matters.” Plaintiffs also attached the affidavit of Brian J.
Meginnes, a partner with the law firm Elias, Meginnes, Riffle & Seghetti, PC., who has been
practicing law since 1978. Meginnes stated that the hourly rates sought by Plaintiffs are at or below
the normal rate and “are reasonable given the expertise necessary to litigate copyright matters . . .
before federal courts in central Illinois.” Meginnes also stated that the total amount of attorneys’
fees sought in this case was reasonable for a matter pending in federal court, based upon the history
of the case.
This court agrees with Plaintiffs’ arguments. Defendants could have easily avoided the
judgment of $48,000 and an award of substantial attorneys’ fees by paying approximately $250.00
a month in license fees. Instead, Defendants treated the copyright laws with disdain, even though
they knew the consequences, having been sued for copyright infringement on two prior occasions.
Plaintiffs were required to sue Defendants for copyright infringement for yet a third time and are
entitled to the attorneys’ fees and costs they incurred in pursuing the meritorious action in this case.
See Gonzalez, 301 F.3d at 609-10; see also Spooner, 644 F.3d at 68-69. This court has carefully
reviewed the documentation provided by Plaintiffs and concludes that the attorneys’ fees and costs
requested are thoroughly documented and were necessary in this litigation. This court notes that it
agrees with Plaintiffs that Defendants have to be considered responsible for increasing substantially
the number of hours Plaintiffs’ attorneys were required to work in this case by unnecessarily

14

prolonging and complicating discovery4 and by raising completely frivolous arguments which,
nevertheless, required responses. This court also finds unpersuasive Defendants’ argument that the
hourly rates charged by Plaintiffs’ attorneys are excessive.5 In exercising its discretion to award
attorneys’ fees to a prevailing party under the Copyright Act, a court may consider such factors as
“frivolousness, motivation, objective unreasonableness (both in the factual and legal components
of the case) and the need in particular circumstances to advance consideration of compensation and
deterrence.” Gonzalez, 301 F.3d at 609, quoting Fogerty v. Fantasy, Inc., 510 U.S. 517, 535 n.19
(1994). This court concludes that all of the relevant factors favor awarding Plaintiffs their attorneys’
fees in this case.
This court must agree with Defendants, however, that Defendants Pirtle and P & C should
not be required to pay the attorneys’ fees and costs which were related solely to the claim against
Defendant Clark. Defendants, however, did not make an attempt to calculate the amount of
attorneys’ fees and costs related solely to the claim against Clark. This court has reviewed the
detailed itemization of hourly charges provided by Plaintiffs and concludes that $9,538.25 of the
attorneys’ fees requested relate to the claim against Clark. In addition, based upon the date of the
charges, this court concludes that $2,339.22 of the costs requested relate to the claim against Clark.

4

Defendants’ argument that they were unable to comply with discovery requests because
of the illness and death of Defendant Clark is unpersuasive. Based upon the deposition
testimony of Pirtle and Sam Britten, this court concludes that Pirtle and Britten had access to the
documents and information sought but Defendants made no real attempt to obtain and provide
the information until ordered to do so after Plaintiffs filed motions to compel.
5

Defendants have argued that the hourly rate charged by Plaintiffs’ attorneys is
excessive and not the “usual and customary rate for the services performed in this community.”
However, it was reasonable for Plaintiffs to hire attorneys experienced in intellectual property
litigation and copyright law to protect their interests. See Helfrich v. Carle Clinic Ass’n, P.C.,
328 F.3d 915, 919 (7th Cir. 2003).
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Therefore, the attorneys’ fees requested from Pirtle and P & C are reduced to $77,001.25 and the
costs requested are reduced to $7,107.99. Defendants Pirtle and P & C are ordered to pay these
amounts to Plaintiffs. Plaintiffs may pursue an award of their attorneys’ fees and costs related to
their claim against Clark from Pirtle, as Clark’s successor, and from Joan Clark, if she is substituted
for Defendant Clark.
IT IS THEREFORE ORDERED THAT:
(1) Plaintiffs are awarded attorneys’ fees in the amount of $77,001.25 and costs in the
amount of $7,107.99.
(2) Plaintiffs’ Motion to Substitute Parties for Deceased Defendant Lonnie E. Clark (#55)
is GRANTED in part and reserved in part. The Motion (#55) is GRANTED as to Defendant J.W.
Pirtle and Pirtle is substituted for Defendant Lonnie E. Clark. Plaintiffs are allowed 30 days to file
a motion seeking judgment against J.W. Pirtle, as successor of Lonnie Clark. A hearing will be held
on October12, 2011, at 3:30 p.m. to consider the Objection filed by Joan Clark, Jeffery Clark and
Lonnie E. Clark II to the Motion to Substitute Parties (#55).
ENTERED this 29th day of August, 2011
s/ Michael P. McCuskey
MICHAEL P. McCUSKEY
CHIEF U.S. DISTRICT JUDGE

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