BELL v. ROYAL CORNICHE TRAVEL LTD. et al
Filing
236
ORDER granting 210 and 226 Motions. Mr. Lantz is awarded his attorney's fees and costs in the amount of $33,974.65. Signed by Judge Tanya Walton Pratt on 6/8/2015. (CBU)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
RICHARD N. BELL,
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Plaintiff,
v.
CHARLES LANTZ,
Defendant.
Case No. 1:13-cv-00035-TWP-DKL
ENTRY ON DEFENDANT CHARLES LANTZ’S
MOTION FOR COSTS AND ATTORNEY’S FEES
This matter is before the Court on Defendant Charles Lantz’s (“Mr. Lantz”) Motion for
Costs and Attorney’s Fees (Filing No. 210) pursuant to 17 U.S.C. § 505 of the Copyright Act,
following the voluntary dismissal of the action by Plaintiff Richard Bell (“Mr. Bell”). Mr. Lantz
seeks an award of $33,974.65 in attorney’s fees and costs (Filing No. 226). For the following
reasons, the Court GRANTS Mr. Lantz’s Motion.
I.
BACKGROUND
On January 8, 2013, Mr. Bell, a practicing attorney and professional photographer, filed a
Complaint in this Court, alleging copyright infringement against forty-seven defendants, including
Mr. Lantz (Filing No. 1). The subject of the alleged infringement was a photograph of the
Indianapolis skyline taken by Mr. Bell (“the Indianapolis Photo”). In his Answer to the Complaint
Mr. Lantz denied all allegations of copyright infringement of the Indianapolis Photo (Filing No.
114).
Through interrogatories, Mr. Bell confirmed that Mr. Lantz had never infringed the
copyright of the Indianapolis Photo. After discovery, on November 17, 2014, Mr. Bell moved to
voluntarily dismiss with prejudice his copyright infringement action against Mr. Lantz (Filing No.
205). On December 1, 2014, the Court granted the unopposed motion for voluntary dismissal with
prejudice (Filing No. 208).
Because Mr. Bell’s copyright action against Mr. Lantz was dismissed with prejudice, Mr.
Lantz became the “prevailing party” under the Copyright Act. On December 10, 2014, Mr. Lantz
filed his Motion for Costs and Attorney’s Fees based on his status as a prevailing party under 17
U.S.C. § 505.
II.
LEGAL STANDARD
Under 17 U.S.C. § 505, in any copyright civil action, the district court in its discretion may
allow the recovery of all costs of litigation, including an award of a reasonable attorney’s fee as
part of those costs, to the prevailing party. A party prevails “when it obtains a ‘material alteration
of the legal relationship of the parties.’” Hyperquest, Inc. v. N’Site Solutions, Inc., 632 F.3d 377,
387 (7th Cir. 2011) (quoting Riviera Distributors, Inc. v. Jones, 517 F.3d 926, 928 (7th Cir. 2008)).
“Defendants who defeat a copyright infringement action are entitled to a strong presumption in
favor of a grant of fees.” Hyperquest, 632 F.3d at 387.
The United States Supreme Court noted that in determining whether to exercise its
discretion to award costs and fees in a copyright case, district courts should look to a number of
nonexclusive factors including: (1) the frivolousness of the action; (2) the losing party’s motivation
for filing or contesting the action; (3) the objective unreasonableness of the action; and (4) the
need to “advance considerations of compensation and deterrence.” Fogerty v. Fantasy, Inc., 510
U.S. 517, 535 n.19 (1994).
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III. DISCUSSION
Mr. Lantz asserts that he should be awarded his attorney’s fees and costs under 17 U.S.C.
§ 505 because he is the prevailing party and each factor noted in Fogerty suggests that such an
award is appropriate in this case.
A.
The Fogerty Factors
When the court considers whether to exercise its statutory discretion to award costs and
fees under 17 U.S.C. § 505, the court should consider the frivolousness of the action, the losing
party’s motivation for filing or contesting the action, the objective unreasonableness of the action,
and the need to “advance considerations of compensation and deterrence.” Fogerty, 510 U.S. at
535 n.19. The Court now considers each of these factors in turn.
1.
The frivolousness of the action.
In this case, Mr. Bell brought claims for copyright infringement and conversion. The Court
previously ruled that Mr. Bell’s state law conversion claim was preempted by the Copyright Act
and therefore was legally baseless. (Filing No. 163, 164, 165.) Regarding Mr. Bell’s copyright
infringement claim, Mr. Bell had no evidence to support his claim against Mr. Lantz, leading Mr.
Bell to move for a voluntary dismissal with prejudice on his own accord. At no point in this
litigation did Mr. Bell possess evidence to prove a conversion or copyright claim against Mr. Lantz.
Thus, the Court determines that this factor weighs in favor of awarding attorney’s fees and costs.
2.
The losing party’s motivation for filing or contesting the action.
When looking to Mr. Bell’s motivation for filing this action, the Court finds that Mr. Bell’s
motivation is questionable. Mr. Bell has filed a multiplicity of suits in this Court, each involving
the same or similar infringement allegations. In many of these copyright infringement suits, Mr.
Bell has improperly joined several defendants, thereby saving him extensive filing fees. In this
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case alone, Mr. Bell sued forty-seven defendants and then quickly offered settlements to
defendants who were unwilling to pay for a legal defense. In some of Mr. Bell’s lawsuits, the
district court determined that the improperly joined defendants should be severed, and severance
was granted. Further, in this case, Mr. Bell lacked any evidentiary support for his claims against
Mr. Lantz. The Court is persuaded by Mr. Lantz’s argument that the motivation of Mr. Bell in
filing this action appears to be an attempt to extract quick, small settlements from many defendants
instead of using the judicial process to protect his copyright against legitimate infringing actors.
This factor weighs in favor of awarding attorney’s fees and costs to Mr. Lantz.
3.
The objective unreasonableness of the action.
As noted above, Mr. Bell had no evidence to support his allegations of copyright
infringement against Mr. Lantz, yet he still filed suit alleging the unsupported claim. It is
unreasonable to file suit without any evidence to support the claims. Filing this action caused an
undue waste of the parties’ and the Court’s resources. This factor also weighs in favor of awarding
attorney’s fees and costs.
4.
The need to “advance considerations of compensation and deterrence.”
Under the circumstances of this case, awarding Mr. Lantz his attorney’s fees and costs will
advance the considerations of compensation and deterrence. The Seventh Circuit explained that a
defendant is entitled to a “very strong” presumption in favor of being awarded attorney’s fees in
order to make certain that a copyright defendant does not disregard a meritorious defense in
situations in which “the cost of vindication exceeds the private benefit to the party.” Assessment
Techs. of Wi, LLC v. Wire Data, Inc., 361 F.3d 434, 437 (7th Cir. 2004).
In this case, Mr. Lantz took a stand against a plaintiff who was using his knowledge and
status as a practicing attorney to file meritless suits and to attempt to outmaneuver the legal system.
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Consistent with the purposes of the Copyright Act and its provision regarding an award to
prevailing parties, and to advance considerations of compensation and deterrence, awarding Mr.
Lantz his attorney’s fees and costs is appropriate.
B.
Mr. Bell’s Opposition
Mr. Bell opposes Mr. Lantz’s Motion, asserting: (1) Mr. Lantz failed to notify Mr. Bell that
he had sued the wrong defendant when Mr. Lantz was served with the Complaint; (2) discovery
and Mr. Lantz’s counsel’s deposition showed that the billing rate for Mr. Overhauser should have
been $250.00 per hour and not $410.00 per hour; and (3) Mr. Lantz failed to mitigate his legal
fees.
First, Mr. Bell argues that Mr. Lantz should have notified him that he had sued the wrong
defendant when Mr. Lantz was served with the Complaint. Mr. Bell alleges that Mr. Lantz instead
waited twenty-two months into the litigation, and as a result of compelled discovery, finally
revealed that he had not published the Indianapolis Photo. However, Mr. Lantz denied all
allegations of infringement when he filed his Answer to Mr. Bell’s Complaint less than two months
after the initiation of this action. This argument of Mr. Bell is unavailing.
Next, Mr. Bell argues that the billing rate was exaggerated and unreasonable according to
documents produced in discovery and the deposition of Mr. Overhauser. This argument, too, is
unavailing. First, Mr. Bell failed to designate any exhibits that support his assertion that Mr.
Overhauser’s rate was $250.00 per hour. He did not submit to the Court any of the documents
produced in discovery that allegedly support his position. The exhibits designated for the Court’s
review support Mr. Lantz’s attorney’s fee request in regard to Mr. Overhauser’s rates and the
amount of time spent on the case. Mr. Overhauser’s deposition testimony also supports Mr.
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Lantz’s fee request. Given the nature of this litigation, Mr. Overhauser’s years of experience, and
the documents provided to the Court, the Court determines that the fees requested are reasonable.
Finally, Mr. Bell asserts that Mr. Lantz failed to mitigate his attorney’s fees. This argument
is based on Mr. Bell’s meritless argument that Mr. Lantz did not deny liability until twenty-two
months into the litigation. In reality, Mr. Lantz denied liability at his first opportunity—in his
Answer. Mr. Lantz “laid low” throughout the litigation, thereby reducing the expense of the
litigation. Mr. Lantz’s fees increased as his counsel was required to respond to Mr. Bell’s filings.
While defense counsel is not required to determine and take the most economical defense strategy
in defending against a lawsuit; it appears that Mr. Lantz may have taken the most economical
approach feasible in this action.
IV. CONCLUSION
For the foregoing reasons, Mr. Lantz’s Motion for Costs and Attorney’s Fees (Filing No.
210) and Motion for Leave to Supplement Motion for Costs and Attorney’s Fees (Filing No. 226)
are GRANTED. Mr. Lantz is awarded his attorney’s fees and costs in the amount of $33,974.65
against Mr. Bell.
SO ORDERED.
Date: 6/8/2015
DISTRIBUTION:
Richard N. Bell
BELL LAW FIRM
richbell@comcast.net
Paul B. Overhauser
OVERHAUSER LAW OFFICES, LLC
poverhauser@overhauser.com
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