Sundance Media Group, LLC v. Yuneec USA, INC
ORDER granting in part 78 Motion for Attorney Fees. Yuneec is awarded $193,398.70 in fees and no costs against plaintiff Sundance. The clerk of court is ordered to enter judgment accordingly. IT IS FURTHER ORDERED that Yuneec either dismisses its remaining counterclaim, or file a status report on how it intends to prosecute it, by March 3, 2021. Signed by Judge Andrew P. Gordon on 2/17/2021. (Copies have been distributed pursuant to the NEF - HAM)
Case 2:18-cv-00388-APG-BNW Document 92 Filed 02/17/21 Page 1 of 5
UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
3 SUNDANCE MEDIA GROUP, LLC,
Case No.: 2:18-cv-00388-APG-BNW
Order Granting in Part Defendant’s
Motion for Attorneys’ Fees
6 YUNEEC USA, INC.,
[ECF No. 78]
I previously granted summary judgment in favor of defendant Yuneec USA, Inc. on the
10 claims asserted against it by plaintiff Sundance Media Group, LLC. ECF No. 76. Yuneec now
11 moves for an award of its attorneys’ fees and costs. ECF No. 78.
I have discretion to award attorneys’ fees to Yuneec as the prevailing party on
14 Sundance’s copyright claims. 17 U.S.C. § 505. In exercising that discretion, I should consider at
15 least the following factors: “the degree of success obtained . . . ; frivolousness; motivation;
16 objective unreasonableness (both in the factual and legal arguments in the case); and the need in
17 particular circumstances to advance considerations of compensation and deterrence.” Jackson v.
18 Axton, 25 F.3d 884, 890 (9th Cir. 1994). And I “should keep in mind the purposes of the
19 Copyright Act (to promote creativity for the public good) and apply the factors in an evenhanded
20 manner to prevailing plaintiffs and prevailing defendants alike.” Id. With regard to this case, a
21 “successful defense furthers the purposes of the Copyright Act just as much as a successful
22 infringement suit does.” Inhale, Inc. v. Starbuzz Tobacco, Inc., 755 F.3d 1038, 1043 (9th Cir.
23 2014), as amended (July 9, 2014).
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Yuneec obviously succeeded by prevailing on summary judgment on both of Sundance’s
2 copyright claims. Sundance did not produce copies of the allegedly protected photographs until
3 six months after discovery closed. I previously ruled that Sundance is
at fault for its failure to disclose information fundamental to its infringement
claims that it had before it even filed suit. Yet it did not disclose the photographs
in discovery, did not disclose them even after Yuneec pointed out this defect at
summary judgment, and waited until its reply brief to finally produce them.
7 ECF No. 76 at 5. Sundance failed to timely produce evidence of an infringement and failed to
8 show it is entitled to damages as a result of Yuneec’s actions. Sundance’s claims had “numerous
9 fatal defects,” as pointed out in my summary judgment order. Id. at 6-9. Yuneec was forced to
10 incur significant attorneys’ fees defending against Sundance’s unsupported claims. Sundance
11 had many opportunities to resolve this lawsuit and save the parties’ and the court’s resources.
12 The Copyright Act does not countenance Sundance’s actions. Rather, it favors awarding fees to
13 Yuneec, to avoid the unfairness of the hefty financial burden caused by this litigation.
When determining a reasonable fee award, I “first calculate the lodestar by multiplying
15 the number of hours reasonably expended . . . by [the] reasonable hourly rate.” Carter v. Caleb
16 Brett LLC, 757 F.3d 866, 868 (9th Cir. 2014) (quotation omitted). Yuneec contends that the
17 lodestar should be $193,398.70, 1 calculated by multiplying the number of hours worked by the
18 hourly rates charged by Yuneec’s lawyers. I previously found that the rates charged by Yuneec’s
19 less-experienced counsel are higher than the rates charged by similar lawyers in this district, but
20 the nature of this lawsuit permitted those higher rates. ECF No. 53 at 2-3. Yuneec’s counsel
Yuneec originally requested $195,491.20 in fees, but subsequently reduced that by $2,092.50
after Sundance pointed out an administrative error by Yuneec’s counsel. See ECF No. 91 at 4
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1 properly staffed the necessary tasks with the appropriate-level lawyers. It does not appear that
2 counsel billed more hours than necessary to perform the work.
Sundance complains that Yuneec’s local counsel billed to review the work of out-of-state
4 counsel. But that is one of the jobs of local counsel. Local counsel is to ensure that the Local
5 Rules are complied with. That requires local counsel to at least review the papers prepared by
6 out-of-state counsel. In this case, local counsel’s charges are appropriate.
I set the lodestar at $193,398.70.
Once calculated, the lodestar is presumptively reasonable. See Pennsylvania v. Delaware
9 Valley Citizens’ Council for Clean Air, 483 U.S. 711, 728 (1987). Only in “rare and exceptional
10 cases” should a court adjust the lodestar figure. Van Gerwen v. Guar. Mut. Life Co., 214 F.3d
11 1041, 1045 (9th Cir. 2000) (internal quotations omitted); see also Fischer v. SJB-P.D., Inc., 214
12 F.3d 1115, 1119 n.4 (9th Cir. 2000) (stating that the lodestar figure should only be adjusted in
13 rare and exceptional cases).
I have evaluated that lodestar based on the factors set forth in Brunzell v. Golden Gate
15 Nat. Bank, 455 P.2d 31, 33 (Nev. 1969), 2 Kerr v. Screen Extras Guild, Inc., 526 F.2d 67 (9th Cir.
16 1975), 3 and Local Rule 54-14(a)(3). As I previously held, Yuneec’s lawyers are skilled
Those factors are “(1) the qualities of the advocate: his ability, his training, education,
experience, professional standing and skill; (2) the character of the work to be done: its
difficulty, its intricacy, its importance, time and skill required, the responsibility imposed and the
prominence and character of the parties where they affect the importance of the litigation; (3) the
work actually performed by the lawyer: the skill, time and attention given to the work; (4) the
result: whether the attorney was successful and what benefits were derived.” 455 P.2d at 33
Those factors are: “(1) the time and labor required, (2) the novelty and difficulty of the
questions involved, (3) the skill requisite to perform the legal service properly, (4) the preclusion
23 of other employment by the attorney due to acceptance of the case, (5) the customary fee, (6)
whether the fee is fixed or contingent, (7) time limitations imposed by the client or the
circumstances, (8) the amount involved and the results obtained, (9) the experience, reputation,
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1 professionals with significant experience and this case involved sophisticated legal issues. ECF
2 No. 53 at 2. Counsel’s efforts were obviously successful as they prevailed on a motion for
3 summary judgment. The Brunzell and Kerr factors confirm the lodestar I have calculated. I
4 award Yuneec $193,398.70 in attorneys’ fees.
Yuneec also seeks $2,146.43 in costs. ECF No. 78 at 24. I have discretion to award costs
7 to Yuneec as the prevailing party. 17 U.S.C. § 505.
Federal Rule of Civil Procedure 54(d) contains two provisions for costs. To recover
9 taxable costs, the prevailing party must file a bill of costs with the clerk. Fed. R. Civ. P. 54(d)(1);
10 see also LR 54-1 (rule regarding bill of costs). Taxable costs are taxed by the clerk rather than
11 the court. Fed. R. Civ. P. 54(d)(1); LR 54-1. The categories of taxable costs are identified in 28
12 U.S.C. § 1920 and Local Rules 54-1 through 54-13. For example, filing fees, service of process
13 expenses, and some copying costs are taxable.
By contrast, nontaxable expenses are recoverable on a motion to the court, as part of the
15 motion for fees. Fed. R. Civ. P. 54(d)(2) (“claim for attorney’s fees and related nontaxable
16 expenses”); see also LR 54-14(b)(2) (A motion for attorney’s fees must include “[a]n itemization
17 of all costs sought to be charged as part of the fee award and not otherwise taxable pursuant to
18 LR 54-1 through 54-13.”). Postage, computer research, and some copying expenses are
19 nontaxable costs. See LR 54-6 (explaining which copying costs are taxable and which are not);
20 LR 54-11 (listing costs that are not ordinarily allowed).
and ability of the attorneys, (10) the ‘undesirability’ of the case, (11) the nature and length of the
professional relationship with the client, and (12) awards in similar cases.” 526 F.2d at 70.
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Yuneec’s request for court fees is properly addressed through a bill of costs filed with the
2 clerk under Local Rule 54-1. Yuneec’s request for nontaxable expenses (e.g., “duplication” and
3 “Fed Ex”) does not adequately itemize, identify, or describe those expenses and their purposes as
4 required by the Local Rules. I therefore deny Yuneec’s request for reimbursement of its costs.
I THEREFORE ORDER that defendant Yuneec USA, Inc.’s motion for attorneys’ fees
7 and costs (ECF No. 78) is GRANTED IN PART. Yuneec is awarded $193,398.70 in fees and
8 no costs against plaintiff Sundance. The clerk of court is ordered to enter judgment accordingly.
I FURTHER ORDER Yuneec to either dismiss its remaining counterclaim, or file a status
10 report on how it intends to prosecute it, by March 3, 2021. 4
DATED this 17th day of February, 2021.
ANDREW P. GORDON
UNITED STATES DISTRICT JUDGE
Yuneec previously stated that “following the resolution of Yuneec’s motion for attorneys’ fees
(ECF No. 78), Yuneec intends to and shall seek the Court’s assistance to dismiss its remaining
counterclaims.” ECF No. 81 at 2.
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