Dunn v. Brown et al

Filing 50

Judge F. Dennis Saylor, IV: ORDER entered. AMENDED MEMORANDUM AND ORDER entered granting in part 37 Motion for Attorney Fees; granting 37 Motion for Costs; and denying 40 Motion to Strike.(Castles, Martin)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
_______________________________________
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JOHN F. DUNN,
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a.k.a. JACK DUNN,
)
)
Plaintiff,
)
)
v.
)
)
DAN BROWN and
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SIMON AND SCHUSTER, INC.,
)
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Defendants.
)
_______________________________________)

Civil Action No.
10-11383-FDS

AMENDED MEMORANDUM AND ORDER ON DEFENDANTS’ MOTION FOR
ATTORNEY’S FEES AND PLAINTIFF’S MOTION TO STRIKE
SAYLOR, J.
This is a case alleging copyright infringement. Plaintiff John F. Dunn, proceeding pro se,
brought this action against defendants Dan Brown and Simon and Schuster, Inc., alleging that
defendants infringed on plaintiff’s rights as copyright holder of The Vatican Boys by writing and
publishing the novel Angels and Demons. The matter was referred to United States Magistrate
Judge Kenneth P. Neiman pursuant to 28 U.S.C. § 636(b)(1) for findings and recommendations.
On August 16, 2011, the Magistrate Judge issued his Report and Recommendation, which
recommended that defendants’ motion to dismiss or, in the alternative, for summary judgment be
granted. This Court adopted the Report and Recommendation. Plaintiff appealed, and the First
Circuit affirmed this Court’s order.
Defendants have moved for attorney’s fees. Plaintiff has not filed an opposition and
instead filed a motion to strike defendants’ motion.

I.

Analysis
A.

Plaintiff’s Motion to Strike

Plaintiff contends that defendants’ motion should be struck because (1) it is untimely and
(2) a motion for attorney’s fees is inappropriate because he appealed the case to the First Circuit.
Both contentions are without merit.
The Court extended the deadline for defendants’ motion for attorney’s fees to October
21, 2011, and defendants’ filed their motion on October 14. Accordingly, their motion was
timely filed. Furthermore, entry of a notice of appeal does not divest this Court of jurisdiction to
award attorney’s fees. United States v. Hurley, 63 F.3d 1, 23 (1st Cir. 1995) (“[E]ven after the
appeal is filed the district court retains authority to decide matters not inconsistent with the
pendency of the appeal. A district court may, for example, determine attorneys’ fees after an
appeal has been taken or act in aid of execution of a judgment that has been appealed but not
stayed.” (citations omitted)).
Plaintiff’s motion to strike defendants’ motion for attorney’s fees will therefore be
denied.
B.

Whether Fees Are Warranted under 17 U.S.C. § 505

The Copyright Act authorizes the court in its discretion to award reasonable attorneys’
fees to a prevailing party. 17 U.S.C. § 505; accord Garcia-Goyco v. Law Envt’l. Consultants,
Inc., 428 F.3d 14, 22 (1st Cir. 2005) (“We will disturb a ruling under section 505 only if the
record persuades us that the trial court indulged in a serious lapse in judgment.”). In the context
of copyright law, attorney’s fees should be awarded if doing so will assist in clearly demarcating
the boundaries of copyright law, and thus promote the underlying purpose of the Copyright Act

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“of enriching the general public through access to creative works.” Fogerty v. Fantasy, Inc., 510
U.S. 517, 527, 534 & n.19 (1994). In making this determination, courts should consider, among
other things, the “frivolousness, motivation, objective unreasonableness (both in the factual and
in the legal components of the case)” of the claim, and “the need in particular circumstances to
advance considerations of compensation and deterrence.” Fogerty, 510 U.S. at 535 n. 19
(quoting Lieb v. Topstone Industries, Inc., 788 F.2d 151, 156 (3d Cir. 1986); see also Lotus Dev.
Corp. v. Borland Intern., Inc., 140 F.3d 70, 73 (1st Cir. 1998).
Plaintiff’s claims here may have been unreasonable, but they were not obviously
frivolous. Furthermore, although he is clearly passionate about his claims, there is nothing to
indicate that his motives are improper. Thus the Court will focus on the objective
reasonableness of plaintiff’s claims and whether an award of attorney’s fees is desirable to
compensate defendants and promote deterrence. See Yankee Candle Co. v. Bridgewater Candle
Co., LLC, 140 F. Supp. 2d 111, 115-16 (D. Mass. 2001) (“An unreasonable claim need not be
frivolous to be compensable, nor does a finding of unreasonableness imply culpability on the
part of the losing party.” (citing Matthews v. Freedman, 157 F.3d 25, 29 (1st Cir. 1998), and
Lieb, 788 F.2d at 155). “To determine objective unreasonableness, a court must examine the
factual and legal assertions advanced by the non-prevailing party and determine whether they
were reasonable.” Id.
Here, plaintiff brought this action after having litigated a nearly identical copyright claim
against defendants—alleging substantial similarities between The Vatican Boys and The DaVinci
Code—that was dismissed on summary judgment. By granting summary judgment in both
cases, this Court found that “[n]o reasonable juror acting as an ordinary observer could have

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found the [works] to be substantially similar.” Id. at 116. “Plaintiff’s choice to bring such a
factually weak claim”—especially after having unsuccessfully litigated another virtually
identical claim—“is a relevant consideration in the determination of whether to award attorneys’
fees.” Id. (citing Matthews, 157 F.3d at 29). Given these circumstances, plaintiff’s claims in this
case were objectively unreasonable. See, e.g., Scott v. Meyer, 2010 U.S. Dist. LEXIS 69308, at
*7-*8 (C.D. Cal. June 21, 2010) (concluding that plaintiff’s claims were “objectively
unreasonable” where plaintiff maintained her claims “for protracted period of time” after being
notified that her claims were “without evidentiary support”).
Furthermore, given the facts presented here, an award of attorney’s fees in this case
would support considerations of compensation and deterrence. As discussed, plaintiff has
brought two substantially similar meritless copyright claims against the same defendants
regarding the same book. “[D]efendants who seek to advance a variety of meritorious copyright
defenses should be encouraged to litigate” those defenses rather than settle. Fogerty, 510 U.S. at
527. In so doing, copyright defendants play an important role in “preventing copyright owners
from restricting rightful publications.” Edwards v. Red Farm Studio Co., 109 F.3d 80, 83 (1st
Cir. 1997) (citing Fogerty, 510 U.S. at 534 n.19). “[A]n award of costs and fees is crucial here,
so as to deter this plaintiff, and other similarly situated plaintiffs, from bringing unreasonable
claims based on a cost/benefit analysis that tells such plaintiffs that they can score big if they win
and that there will be no adverse consequences if they lose.” Baker v. Urban Outfitters, Inc., 431
F. Supp. 2d 351, 359 (S.D.N.Y. 2006).
C.

Reasonableness of the Fees

In determining the reasonableness of fees, the First Circuit follows “the ‘lodestar’

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approach, which calculates reasonable attorneys’ fees as ‘the number of hours reasonably
expended multiplied by a reasonable hourly rate.’” Comcast of Mass. I, Inc. v. Naranjo, 303 F.
Supp. 2d 43, 50 (D. Mass. 2005) (quoting Furtado v. Bishop, 635 F.2d 915, 920 (1st Cir. 1980)).
A reasonable hourly rate is measured according to the prevailing market rates in the relevant
community and by considering factors such as “the type of work performed, who performed it,
the expertise that is required, and when it was undertaken.” Mountain Cable Co. v. Choquette,
53 F. Supp. 2d 107, 114 (D. Mass. 1999) (quoting Grendel’s Den, Inc. v. Larkin, 749 F.2d 945,
951 (1st Cir. 1984)). To determine the number of hours reasonably spent, the Court must
subtract from the number of hours actually spent hours which were “duplicative, unproductive,
excessive, or otherwise unnecessary.” Id. (quoting Grendel’s Den, 749 F.2d at 950).
This figure represents the lodestar; the Court may adjust the lodestar upward or
downward to reflect other factors, including the result obtained and the time and labor actually
required to handle the matter efficiently. Torres-Rivera v. O’Neill-Cancel, 524 F.3d 331, 336
(1st Cir. 2008); Coutin v. Young & Rubicam, P.R., Inc., 124 F.3d 331, 339 (1st Cir. 1997);
Choquette, 53 F. Supp. 2d at 114-16 (citing Grendel’s Den, 749 F.2d at 951).
Defendants have requested $55,114 in attorneys’ fees and $295.85 in costs. Defendants’
counsel charged on average approximately $449 per hour. Counsel for defendants have provided
detailed time records for their work on this case. The Court is unable to point to any individual
entries that appear to be obviously “duplicative, unproductive, excessive, or otherwise
unnecessary” in relation to the specific tasks plaintiff’s counsel completed. Thus, $55,114 is a
reasonable initial “lodestar” calculation.1
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Defendants listed costs of $295.85 are the types of expenses customarily charged to clients and are
therefore appropriate. See Invessys, Inc. v. McGraw-Hill Companies, Ltd., 369 F.3d 16, 22 (1st Cir. 2004).

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That is not, however, the end of the inquiry. The Court must next consider whether to
adjust the lodestar in light of the results obtained in this case and “the time and labor actually
required for the efficacious handling of the matter.” Torres-Rivera, 524 F.3d at 336. The First
Circuit has directed courts to consider, in combination, three definitions of “results obtained”:
(1) a party’s success on each claim, (2) the societal importance of the rights at issue, and (3) the
relief actually achieved. Coutin, 124 F.3d at 338. “When determining the number of billable
hours to allow, a court ‘has a right—indeed, a duty—to see whether counsel substantially
exceeded the bounds of reasonable effort.’” Mogilevsky v. Bally Total Fitness Corp., 311 F.
Supp. 2d 212, 218 (D. Mass. 2004) (quoting Guckenberger v. Boston Univ., 8 F. Supp. 2d 91,
99-100 (D. Mass. 1998)); accord United States v. Metropolitan Dist. Comm’n, 847 F.2d 12, 17
(1st Cir. 1988). The determination of reasonable fees is largely a matter of the court’s informed
judgment. Torres-Rivera, 524 F.3d at 336; Coutin, 124 F.3d at 340. Thus, as the First Circuit
has stated, “[t]he trial court’s discretion in respect to fee awards is extremely broad.” Lipsett v.
Blanco, 975 F.2d 934, 937 (1st Cir. 1992).
As discussed, defendants successfully moved to dismiss the action. Given the nature of
the works at issue, defense counsel presumably had to spend some time reading and analyzing
the content of the two books. However, the case was dismissed before discovery during the
early stages of litigation. Furthermore, the case presented relatively straightforward legal issues
that the parties had already litigated in a nearly identical earlier proceeding. Considering “the
time and labor actually required for the efficacious handling” of this relatively straightforward
case, see Torres-Rivera, 524 F.3d at 336, in conjunction with the adjustment factors identified by
the First Circuit, see Coutin, 124 F.3d at 337 & n.3, 340, the Court concludes that a 60%

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reduction in fees is appropriate. Accordingly, defendants will be awarded $22,045 in attorney’s
fees.
II.

Conclusion
For the foregoing reasons, defendants are awarded $22,045 in reasonable attorney’s fees

and $295.85 in reasonable costs with interest as provided by law.
So Ordered.

/s/ F. Dennis Saylor
F. Dennis Saylor IV
United States District Judge
Dated: June 27, 2012

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