FameFlynet, Inc. v. Jasmine Enterprises Incorporated
Filing
125
MEMORANDUM Opinion and Order: Jasmine's motion to strike is granted in part and denied in part 119 , and FFN is awarded $10,500 in attorneys' fees and costs. 113 Signed by the Honorable Thomas M. Durkin on 8/8/2019:Mailed notice(srn, )
Case: 1:17-cv-04749 Document #: 125 Filed: 08/08/19 Page 1 of 15 PageID #:1041
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
FAMEFLYNET, INC.,
Plaintiff,
No. 17 C 4749
v.
Judge Thomas M. Durkin
JASMINE ENTERPRISES INCORPORATED,
Defendant.
MEMORANDUM OPINION AND ORDER
FameFlynet, Inc. (FFN) brought this action against Jasmine Enterprises for
copyright infringement after Jasmine posted celebrity wedding photos on its company
blog. In January 2019, the parties stipulated to the facts, evidence, and a statutory
damages award, reserving only their claims to attorneys’ fees. R. 110. Now before the
Court is FFN’s petition for attorneys’ fees and costs [113], and Jasmine’s motion to
strike FFN’s motion [119]. For the following reasons, Jasmine’s motion to strike is
granted in part and denied in part, and FFN is awarded $10,500 in attorneys’ fees
and costs.
Background
This case exemplifies the familiar adage of cutting off your nose to spite your
face. Less than two months after FFN filed its complaint in the fall of 2016, the
parties ended settlement negotiations because they could not bridge the $1,000 gap
between the $16,000 demand and $15,000 offer. Now, over two-and-a-half years later,
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and after a stipulated statutory damages award of only $5,000, FFN requests
attorneys’ fees totaling $241,443.77.
The underlying facts will not be repeated at length here.1 FFN owns copyrights
to 46 photographs of Nicky Hilton and James Rothschild from the couple’s July 2015
wedding. R. 110 ¶¶ 14-16. That August, an employee of Jasmine Enterprises, a
wedding dress retailer, posted three of those photos on the company’s blog without
FFN’s permission. Id. ¶¶ 13, 21; R. 84 ¶ 23. FFN observed the photographs that
October, sent a cease-and-desist letter the following June, and sued Jasmine for
copyright infringement in the Southern District of New York in September 2016. R.
110 ¶¶ 18, 25; R. 1.2 Less than one month after Jasmine was served, FFN demanded
$16,000 to settle the case. R. 114 ¶ 9. FFN arrived at that amount by multiplying the
highest licensing fee FFN had received for a Hilton-Rothschild wedding photograph
by three ($2,500 from People Magazine), and adding to that its attorneys’ fees as of
that date ($7,800). Id. Jasmine countered at $15,000, which FFN’s counsel declined,
stating: “We will probably never be this close again but no problem. It was a good try.
Plaintiff
withdraws
all
offers
of
settlement.
We
will
reprice
after
conference/motion/whatever comes next.” Id. ¶¶ 10-11. Jasmine again offered to settle
the case for $15,000 that December and the following February. Id. ¶¶ 17, 25. In June
2017, FFN rejected Jasmine’s offer of judgment for $15,000, inclusive of attorneys’
For a more detailed factual description of the underlying claim, see this Court’s
September 25, 2018 Order granting summary judgment in favor of FFN as to liability.
R. 99.
2 The case was transferred to the Northern District of Illinois in June 2017. R. 45.
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fees. Id. ¶¶ 33-34. Meanwhile, FFN’s attorneys’ fees had climbed to $55,450. Id. ¶ 34.
For the next year, the parties engaged in discovery disputes, including motions to
compel and for sanctions by Jasmine. Id. ¶¶ 47, 63.
In September 2018, this Court granted FFN’s motion for summary judgment
as to Jasmine’s liability. R. 99. Following the Court’s order, FFN made an allinclusive $200,000 demand. R.114 ¶ 70. In the subsequent weeks, Jasmine offered
$15,000 and then $17,500 to settle the case, which FFN again declined. Id. ¶¶ 72, 74.
In lieu of trial, the parties stipulated to the facts and a statutory damages
award of $5,000, reserving only their claims to attorneys’ fees. R. 110 at 1. FFN then
filed its motion requesting $225,567.18 in attorneys’ fees and costs and submitted
declarations from the following four members of Sanders Law PLLC: Craig Sanders,
Erica Carvajal, David Barshay, and Jonathan Cader. R. 113-117. Carvajal’s
declaration provides a detailed synopsis of the firm’s work and interactions with
Jasmine. The other declarations attest to the accuracy of FFN’s billing records and
costs. Shortly thereafter, Jasmine filed its opposition, as well as a motion to strike
FFN’s motion. FFN then increased its request to $241,443.77 to account for its
additional work preparing the reply and its opposition to Jasmine’s motion to strike.
Analysis
I.
Jasmine’s Motion to Strike
Jasmine provides a laundry list of reasons why this Court should strike FFN’s
motion for fees. The Court is largely unpersuaded.
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First, Jasmine contends that FFN’s motion “is predicated almost entirely on
inadmissible settlement communications and confidential mediation proceedings,”
and is thus barred by Federal Rule of Evidence 408.3 R. 119 at 2. To support its
position, Jasmine cites two patent cases from the Eastern District of New York in
which the court held settlement negotiations involving attorneys’ fees were
inadmissible. See R. 119 at 2-3; HR U.S. LLC v. Mizco Int’l, Inc., 2010 WL 3924548,
at *11 (E.D.N.Y. Sept. 29, 2010) (finding evidence of settlement negotiations
inadmissible in request for attorneys’ fees in patent case); Siracuse v. Program for the
Dev. of Human Potential, 2012 WL 1624291, at *20 (E.D.N.Y. Apr. 30, 2012) (finding
defendant’s reference to settlement offers in opposing plaintiff’s request for fees was
“inappropriate” and citing Mizco). In response, FFN cites several cases that come to
the opposite conclusion, including a more recent Eastern District of New York case
directly on point. See R. 124 at 5; Fortgang v. Pereiras Architects Ubiquitous LLC,
3
Federal Rule of Evidence 408 provides:
(a) Prohibited Uses. Evidence of the following is not admissible – on
behalf of any party – either to prove or disprove the validity or amount
of a disputed claim or to impeach by a prior inconsistent statement or a
contradiction:
(1) furnishing, promising, or offering – or accepting, promising to
accept, or offering to accept – a valuable consideration in compromising
or attempting to compromise the claim; and
(2) conduct or a statement made during compromise negotiations
about the claim – except when offered in a criminal case and when the
negotiations related to a claim by a public office in the exercise of its
regulatory, investigative, or enforcement authority.
(b) Exceptions. The court may admit this evidence for another purpose,
such as proving a witness’s bias or prejudice, negating a contention of
undue delay, or proving an effort to obstruct a criminal investigation or
prosecution.
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2018 WL 1832184, at *4 (E.D.N.Y. Mar. 9, 2018), report and recommendation
adopted, 2018 WL 1505564 (E.D.N.Y. Mar. 27, 2018) (“This Court joins others that
have held that Rule 408 does not bar consideration of settlement discussions in the
context of determining whether attorneys’ fees are appropriate under Section 505 of
the Copyright Act.”); see also Lohman v. Duryea Borough, 574 F.3d 163, 167 (3d Cir.
2009) (holding Rule 408 does not bar a court’s consideration of settlement
negotiations in its analysis of what constitutes a reasonable fee award); Ingram v.
Oroudijan, 647 F.3d 925, 927 (9th Cir. 2011) (holding district court did not err by
considering settlement negotiations for the purpose of deciding a reasonable
attorneys’ fee award); Greenwich Film Prods., S.A. v. DRG Records, Inc., 1996 WL
502336, at *2 (S.D.N.Y. Sept. 5, 1996) (“While determining the reasonableness of a
claim for attorney’s fees is not specifically mentioned as a purpose for which evidence
of a settlement offer may be considered, strong public policy considerations support
its admissibility for that purpose.”). Although the Seventh Circuit has not ruled on
the issue, the weight of authority supports considering settlement discussions when
ruling on whether to award attorneys’ fees. That conclusion is consistent with Rule
408, under which the admissibility of evidence depends on whether the evidence is
intended to “prove liability of or invalidity of the claim or its amount,” or whether it
is offered for “another purpose.” Clevenger v. Bolingbrook Chevrolet, Inc., 401 F. Supp.
2d 878, 880 (N.D. Ill. 2005) (quoting Fed. R. Evid. 408). Here, as Jasmine readily
acknowledges in its motion to strike, FFN submitted the parties’ settlement
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negotiations as proof of Jasmine’s “litigation conduct.” See R. 119 at 3-4. As such, the
settlement negotiations are admissible for the purposes of FFN’s motion.
Jasmine also argues that the Court should strike FFN’s motion for fees because
FFN breached the Southern District of New York Mediation Program’s
confidentiality provision by disclosing Jasmine’s conduct and settlement offer during
the mediation proceedings. This argument also fails. The confidentiality provision
provides that “[a]ny communications made exclusively during or for the mediation
process shall be confidential except as to the provisions indicated in this section.”
S.D.N.Y. Procedures of the Mediation Program 2(a) (Dec. 26, 2018).4 However,
Jasmine did not point this Court to one statement made exclusively for the mediation
process, and thus there is no basis for striking FFN’s motion on that ground.
Jasmine next argues the Court should strike Carvajal’s declaration because
she was not included in FFN’s Rule 26 initial disclosures. Tellingly, Jasmine cites no
cases in support of its position. The purpose of discovery rules is to “facilitate the
development of the facts underlying a given dispute so that justice may be done on
the merits.” Avnet, Inc. v. Motio, Inc., 2016 WL 927194, at *4 (N.D. Ill. Mar. 4, 2016)
(emphasis added). Here, the merits concern information regarding FFN’s
infringement claim, not its request for attorneys’ fees. Further, to the extent Jasmine
argues FFN never disclosed Carvajal, this argument need not be entertained as
Carvajal’s name appears on top of the docket sheet and thus Jasmine was fully aware
Available at
http://www.nysd.uscourts.gov/docs/mediation/Mediation%20Program%20Procedures
.final.2018.pdf
4
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of her connection to the case. See Gicla v. United States, 572 F.3d 407, 411 (7th Cir.
2009) (“Rule 26 is designed to avoid surprise . . . .”).
Jasmine also contends that the Court should strike portions of Carvajal’s
declaration because it contains hearsay statements and references to Jasmine’s
insurance in violation of Federal Rules of Evidence 802 and 411. Turning first to
hearsay, Jasmine does not explain the basis for its objections and cites no cases in
support of its position. As an initial matter, the Court is not compelled to fill in the
gaps in Jasmine’s arguments. See Harvey v. Town of Merrillville, 649 F.3d 526, 532
(7th Cir. 2011) (arguments that are perfunctory, undeveloped, or unsupported by
authority are waived). In addition, as FFN correctly points out, affidavits need not be
admissible in form so long as they would be admissible in content. See Winskunas v.
Birnbaum, 23 F.3d 1264, 1267-68 (7th Cir. 1994). Having reviewed Jasmine’s
objections and FFN’s responses, the statements at issue either do not constitute
hearsay, fall under an exception, and/or are admissible in content if not form. Thus,
Jasmine’s hearsay objections miss the mark.
Jasmine’s argument based on Rule 411 is equally unavailing. Rule 411
provides that evidence “a person was or was not insured against liability is not
admissible to prove whether the person acted negligently or otherwise wrongfully.
But the court may admit this evidence for another purpose . . . .” Fed. R. Evid. 411.
Here, FFN mentions Jasmine’s insurance in the context of settlement negotiations,
not to prove Jasmine acted wrongfully. As such, this argument fails.
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Finally, Jasmine argues that the Court should strike FFN’s motion to the
extent it conflicts with the parties’ prior stipulation of facts. The parties’ stipulation
provides as follows:
WHEREAS, the Plaintiff and Defendant hereby stipulate that . . . the
parties would introduce the following facts and evidence into the record
with respect to Plaintiff’s pending cause of action, including the
resulting claims for statutory damages, attorneys’ fees, and with respect
to Defendant’s affirmative defenses and defenses thereto[.]
R. 110 at 1 (emphasis added). The parties previously stipulated that Jasmine
removed the infringing photos from its blog the same day it received notice of the
infringement from FFN’s counsel. Id. ¶¶ 25-26 (“On June 22, 2016 . . . FFN first
notified Jasmine of alleged copyright infringement . . . . Jasmine immediately
removed the entire blog post, including the Subject Photos.”). FFN now contends the
photographs remained on Jasmine’s blog for three months after Jasmine became
aware of the infringement. R. 113 at 1-2; R. 114 ¶ 6. The stipulation clearly applies
to claims for attorneys’ fees, and thus remains binding on FFN for its current motion.
As such, this Court strikes FFN’s motion and Carvajal’s declaration to the extent they
state that the pictures remained on Jasmine’s blog for three months after Jasmine
received notice of the infringement. In all other respects, the motion is denied.
II.
FFN’s Motion for Attorneys’ Fees and Costs
The Court now turns to FFN’s petition for fees and costs. Under the Copyright
Act, “the court may . . . award a reasonable attorney’s fee to the prevailing party as
part of the costs.” 17 U.S.C. § 505. Courts may not award attorneys’ fees as a matter
of course, but rather must “make a more particularized, case-by-case assessment.”
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Kirtsaeng v. John Wiley & Sons, Inc., 136 S.Ct. 1979, 1985 (2016) (citing Fogerty v.
Fantasy, Inc., 510 U.S. 517, 533 (1994)). Among the nonexclusive factors a court
should consider when deciding whether to award fees are “frivolousness, motivation,
objective unreasonableness[,] and the need in particular circumstances to advance
considerations of compensation and deterrence.” Id. (alteration in original) (quoting
Fogerty, 510 U.S. at 534, n. 19) (the Fogerty factors). While “substantial weight”
should be given to the reasonableness of the losing party’s position, “courts must view
all the circumstances of a case on their own terms, in light of the Copyright Act’s
essential goals.” Id. at 1989. The Copyright Act’s primary goal is “enriching the
general public through access to creative works” by “encouraging and rewarding
authors’ creations while also enabling others to build on that work.” Id. at 1986.
Jasmine does not dispute that FFN is a prevailing party for purposes of a fee
award. Rather, it contends that the Fogerty factors weigh against awarding fees in
this case. For the most part, the Court agrees.
First, Jasmine’s defense was not frivolous or objectively unreasonable. In
support of its motion, FFN points to the fact that Jasmine did not raise 18 of its 19
affirmative defenses in its opposition to summary judgment. But far from being
frivolous, focusing only on its strongest defense – fair use – served judicial economy.
See Frerck v. Pearson Edu., Inc., 63 F. Supp. 3d 882, 886-87 (N.D. Ill. 2014)
(“[W]hen—as here—the defendant takes a shotgun approach to affirmative defenses,
judicial economy is best served by forcing it to identify and argue only those defenses
that matter.”).
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As for Jasmine’s fair use defense, FFN concedes it was not “frivolous per se.”
R. 122 at 4. Nevertheless, FFN contends that it was still objectively unreasonable
given “existing case law.” Id. In so arguing, FFN points to this Court’s summary
judgment ruling in which the Court found that three of the four statutory factors for
evaluating fair use weighed against applying fair use in this case. But FFN conflates
whether a defense was successful with whether it was reasonable. See Kirtsaeng, 136
S. Ct. at 1988 (“Courts every day see reasonable defenses that ultimately fail (just as
they see reasonable claims that come to nothing); in this context, as in any other, they
are capable of distinguishing between those defenses (or claims) and the objectively
unreasonable variety.”). Losing on the merits does not establish that a party’s
position was objectively unreasonable. Otherwise, a losing defendant would “virtually
always be found to have done something culpable.” Kirtsaeng, 136 S. Ct. at 1988.
Here, Jasmine appears to have sincerely advanced its fair use defense. And while
ultimately unsuccessful, the defense was neither factually nor legally unreasonable.
Nor was Jasmine’s other litigation conduct unreasonable. FFN contends that
by merely repeating its $15,000 settlement offer throughout the litigation, Jasmine
made no real effort to settle. But that assumes $15,000 was an unreasonable offer.
The facts suggest otherwise. Tellingly, $15,000 was three times greater than what
the parties settled for after this Court ruled in FFN’s favor on liability. Moreover, it
was many times FFN’s licensing fee for the Hilton-Rothschild photos, which ranged
from $11.73 to $2,500. Finally, FFN does not point to one demand it made after its
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initial $16,000 offer until it demanded $200,000 nearly two years later. FFN is at
least as culpable as Jasmine for the parties’ failed settlement efforts.
FFN also points to an email it received from Jasmine’s counsel after this
Court’s summary judgment ruling to demonstrate Jasmine was motivated by bad
faith. In that email, Jasmine’s attorney wrote that “[w]e have always viewed damages
as a main issue in this case and that has not changed.” R. 114-3. FFN contends this
response was “remarkable” because the parties had just expended tremendous
resources resolving the issue of liability. But viewing both damages and liability as
main issues is not inconsistent. Moreover, Jasmine can hardly be expected to throw
in the towel after an adverse ruling. Rather than demonstrating bad faith, the email
merely establishes Jasmine’s attempt to maintain bargaining leverage. In short,
neither Jasmine’s fair use defense nor its settlement conduct was objectively
unreasonable. This conclusion weighs against awarding fees in this case.
Additionally, awarding FFN its substantial requested fees would not advance
considerations of compensation and deterrence. Jasmine removed the infringing
photos the same day it received notice from FFN’s counsel. R. 110 ¶ 26. Furthermore,
Jasmine has not posted on the blog since 2015, it does not intend to post in the future,
and the employee who posted the infringing photos resigned from the company soon
after the post. Id. ¶¶ 32-34. Rather than disputing this point, FFN argues that failing
to award fees would discourage other potential plaintiffs from pursuing claims. But
this Court has a different concern. Far from advancing the Copyright Act’s goals,
awarding FFN its requested fees would incentivize parties to reject reasonable
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settlement offers in hope of cashing in on enormous attorneys’ fees down the line. See
Greenwich, 1996 WL 502336, at *2 (S.D.N.Y. Sept. 5, 1996) (explaining in a case in
which the parties settled for $40,000 more than defendant’s initial settlement offer
that “[s]ettlements are to be encouraged and a party to an action in which attorney’s
fees may be awarded should not be allowed to believe that it can reject a reasonable
settlement offer and still recover the full amount of its attorney’s fees if ultimately it
recovers little more than the original offer.”).
The Seventh Circuit instructs that the two most important considerations in
applying the Fogerty factors are the strength of the prevailing party’s case and the
amount of relief it obtained. Assessment Techs. of WI, LLC v. WIREdata, Inc., 361
F.3d 434, 436 (7th Cir. 2004). Specifically, “the smaller the damages, provided there
is a real, and especially a willful infringement, the stronger the case for an award of
attorneys’ fees.” Id. at 437. The court reasoned that without the prospect of such an
award, parties with meritorious claims or defenses might be deterred from exercising
their rights. Id. The court explained that the best illustration of this was that a
defendant “could not obtain an award of damages from which to pay his lawyer no
matter how costly it was for him to defend against the suit.” Id. With this concern in
mind, the court concluded that “the prevailing party in a copyright case in which the
monetary stakes are small should have a presumptive entitlement to an award of
attorneys’ fees.” Id. (quoting Gonzales v. Transfer Techs., Inc., 301 F.3d 608, 610 (7th
Cir. 2002)); see also Riviera Distributors, Inc. v. Jones, 517 F.3d 926, 928 (7th Cir.
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2008) (“[T]he prevailing party in copyright litigation is presumptively entitled to
reimbursement of its attorneys’ fees.”).
In light of this presumption, FFN argues that it is entitled to fees absent
“significant and countervailing circumstances.” R. 122 at 2. But this misunderstands
both the weight of the presumption and the considerations driving it. Here, neither
Jasmine nor its then-employee knew that displaying the photographs would infringe
FFN’s copyright. R. 110 ¶ 36. Moreover, this is not a case in which Jasmine advanced
a frivolous defense and refused to settle. To the contrary, FFN ultimately accepted
$10,000 less than what Jasmine repeatedly offered throughout the litigation, an offer
that was well within the range of permissible statutory damages. See 17 U.S.C. §
504(c)(1) (a copyright owner is entitled to statutory damages “in a sum of not less
than $750 or more than $30,000” provided the infringement was not committed
willfully); Music v. Heiman, 2010 WL 1904341, at *4 (W.D. Wis. May 211, 2010)
(awarding $1,000 for each infringement and $5,000 total after the defendant played
the plaintiff’s songs without licenses); Malibu Media, LLC v. Brenneman, 2013 WL
6560387, at *3 (N.D. Ind. Dec. 13, 2013) (finding damages of $1,500 per infringement
and $16,500 total was sufficient to compensate the plaintiff and deter future
infringement after defendant disseminated portions of eleven copyrighted movies);
see also BWP Media USA, Inc. v. Mishka NYC LLC, 2016 WL 8309676, at *3
(E.D.N.Y. Dec. 28, 2016), report and recommendation adopted sub nom. BWP Media
USA v. Death Adders Inc., 2017 WL 880855, at *3 (E.D.N.Y. Mar. 3, 2017) (finding
$7,500 was a “very reasonable” offer of judgment to compensate plaintiff and deter
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infringement after defendant posted two infringing photos on a relatively unknown
blog).
In short, the nature of Jasmine’s infringement and the parties’ legal positions
and litigation conduct do not justify a substantial fee award. Nevertheless, the fault
does not lie exclusively with FFN for failing to settle, and its early work advanced the
goals of the Copyright Act. The Court thus awards FFN $10,500 in fees and costs.
That is slightly more than the expenses FFN had accrued as of November 2016 when
it rejected Jasmine’s initial settlement offer, plus its filing fee ($400) and process
server costs ($95).5 This amount, coupled with the $5,000 stipulated statutory
damages award, is enough to compensate FFN and deter infringement without
rewarding FFN for its decision to forgo settlement in favor of accruing fees.
The past two-and-a-half years of litigation could have been avoided. The
parties were $1,000 apart from settling three weeks after FFN served Jasmine with
the summons and complaint. For FFN to then incur hundreds of thousands of dollars
in fees simply makes no sense, and it should not be rewarded for what should have
been a straightforward case. The Court does not know how much Jasmine incurred
FFN also asks this Court to award its Westlaw charges as part of its costs. However,
electronic legal research expenses are considered a form of attorney fees rather than
costs. See Tchemkou v. Mukasey, 517 F.3d 506, 512-13 (7th Cir. 2008) (“[T]his court
has construed section 1920 to include amounts spent on filing fees, postage, telephone
calls and delivery charges . . . and has held that the costs of computerized legal
research are recoverable as part of an attorney-fee award.”); Montgomery v. Aetna
Plywood, Inc., 231 F.3d 399, 409 (7th Cir. 2000); Lawrence E. Jaffe Pension Plan v.
Household Int’l, Inc., 2014 WL 1097471, at *2 (N.D. Ill. Mar. 20, 2014). The Court
thus considered FFN’s legal research fees in determining a reasonable attorneys’ fee
award.
5
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in fees, but it was also surely too much. And as FFN aptly notes in its motion, “[t]he
party responsible for creating excessive legal costs must bear them itself in the end.”
R. 113 at 10-11 (quoting Riviera, 517 F.3d at 929).
Conclusion
For the reasons stated above, Jasmine’s motion to strike [119] is granted in
part and denied in part, and FFN is awarded $10,500 in attorneys’ fees and costs.
ENTERED:
Honorable Thomas M. Durkin
United States District Judge
Dated: August 8, 2019
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