Schleifer v. Berns
Filing
26
MEMORANDUM DECISION AND ORDER, Defendant's 14 Motion to Dismiss and for Attorney's Fees and Costs is granted. So Ordered by Judge Brian M. Cogan on 7/19/2017. (fwd'd for jgm) (Lee, Tiffeny)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
IAN SCHLEIFER,
Plaintiff,
-against-
MEMORANDUM
DECISION AND ORDER
17 Civ. 1649 (BMC)
KITTEE BERNS,
Defendant.
COGAN, District Judge.
Plaintiff brings this copyright infringement action alleging that defendant’s Ethiopian
cookbook violates the copyright that plaintiff has on his own previously published Ethiopian
cookbook. Before me is defendant’s motion to dismiss the amended complaint pursuant to
Federal Rule of Civil Procedure 12(b)(6), as well as her motion for attorney’s fees and sanctions.
For the reasons that follow, defendant’s motion to dismiss is granted. Moreover, because
plaintiff’s complaint has no legal or factual basis, defendant’s motions for attorney’s fees under
the Copyright Act and for sanctions against plaintiff’s attorneys are granted.
BACKGROUND
Plaintiff Ian Schleifer published his Ethiopian cookbook, Ethiopian-Inspired Cooking:
Vegetarian Specialties, in May 2007 under the pen name “Ian Finn” (the “2007 Schleifer
Cookbook”). The 2007 Schleifer Work included 17 pages of written content, including 11
recipes, and three pages of photographs, for a total of 20 pages. The 2007 Schleifer Work’s
thirteen-digit international standard book number (“ISBN-13”) is 9780979627101. It appears
that there are two versions of the cookbook bearing this ISBN-13. The second version is being
sold on Amazon (the “2007 Amazon Schleifer Cookbook”), and it indicates that it was published
in 2007. However, this may not be accurate because the 2007 Amazon Schleifer Cookbook
references a cookbook plaintiff published in September 2008, so it appears that the 2007
Amazon Schleifer Cookbook was published after that date. Moreover, the 2007 Amazon
Schleifer Cookbook is almost twice as long: The 2007 Amazon Schleifer Cookbook is 46 pages,
including 11 recipes, as compared to the original 2007 Schleifer Cookbook, which is 20 pages,
including 11 recipes.
Defendant published her cookbook, Teff Love: Adventures in Vegan Ethiopian Cooking,
on January 15, 2015, under the pen name “Kittee Berns” (the “Berns Cookbook”). The Berns
Cookbook contains more than 185 pages, including over 140 recipes, commentary, instructions,
ingredient descriptions, and shopping guides. The Berns Work also includes black-and-white,
color, and monochrome illustrations.
In July 2016, plaintiff published a second edition of his 2007 Schleifer Cookbook (the
“2016 Schleifer Cookbook”). The second edition bears the same name as the 2007 Schleifer
Cookbook and is itself identified as the “2nd Edition” of the 2007 Schleifer Cookbook. The
ISBN-13 is different for the 2016 Schleifer Cookbook, as well: ISBN-13 9781535215299. The
2016 Schleifer Cookbook includes 82 pages of content, including 12 recipes and several blackand-white photographs. Moreover, in terms of finish, the 2016 Schleifer Cookbook looks more
professionally composed, whereas the 2007 Schleifer Cookbook seems more amateur in
comparison, as it appears to have been composed with a word processing program and bound
with a plastic spiral.
The 2007 Schleifer Cookbook bears the Registration Number TX 8-281-274. However, a
search of the U.S. Copyright Office’s public search record – which the Court can consider
because it is both an exhibit to the amended complaint and an integral element on which
plaintiff’s claim rests – indicates that plaintiff registered the 2007 Schleifer Cookbook at TX 8-
2
281-274 on December 28, 2016. On January 30, 2017, plaintiff supplemented his Registration
and registered the 2016 Schleifer Cookbook at TX 6-250-394.
Notwithstanding the differences in pages and number of recipes, plaintiff alleges that
“there are no substantive differences between” the 2007 Schleifer Cookbook and the 2016
Schleifer Cookbook, and that “[a]ll infringements and copied texts can be found in both the 2007
and 2016 edition of the books.” Plaintiff argues that both the 2007 and 2016 Cookbooks “are
identical in content notwithstanding certain grammatical upgrades, a preface, and the addition of
colored photos.” Moreover, plaintiff alleges that, based on defendant’s responses to interview
questions in which she stated that she read a lot of recipes and books as part of her effort to write
her own cookbook, one can infer that defendant was familiar with plaintiff’s cookbook.
DISCUSSION
I.
Motion to Dismiss Copyright Infringment
A. Standard of Review
In deciding a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a court
should “draw all reasonable inferences in Plaintiff[’s] favor, assume all well-pleaded factual
allegations to be true, and determine whether they plausibly give rise to an entitlement to relief.”
Faber v. Metro. Life Ins. Co., 648 F.3d 98, 104 (2d Cir. 2011) (internal quotation marks
omitted). A court is not, however, “bound to accept conclusory allegations or legal conclusions
masquerading as factual conclusions.” Id. Thus, “threadbare recitals of the elements of a cause
of action[,] supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)). Although “legal
conclusions can provide the framework of a complaint, they must be supported by factual
allegations.” Id. at 679. Determining whether a complaint plausibly states a claim for relief is “a
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context specific task that requires the reviewing court to draw on its judicial experience and
common sense.” Id.
“In addition to the text of the complaint, the Court may consider documents attached as
exhibits, incorporated by reference, or that are ‘integral’ to the complaint.” McDonald v. West,
138 F. Supp. 3d 448, 453 (S.D.N.Y. 2015) (citing DiFolco v. MSNBC Cable LLC, 622 F.3d 104,
111 (2d Cir. 2010)). In a copyright infringement action, “the works themselves supersede and
control [any] contrary descriptions” that the parties offer in the pleadings. Peter F. Gaito
Architecture, LLC v. Simone Dev. Corp., 602 F.3d 57, 64 (2d Cir. 2010).
B. Copyright Infringement
To state a claim for copyright infringement, a plaintiff must allege “(1) ownership of a
valid copyright and (2) copying of constituent elements of the work that are original.” Feist
Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991). “In the absence of direct
evidence, copying is proven by showing (a) that the defendant had access to the copyrighted
work and (b) the substantial similarity of protectible material in the two works.” Williams v.
Crichton, 84 F.3d 581, 587 (2d Cir. 1996) (internal quotation marks omitted); see also Walker v.
Time Life Films, Inc., 784 F.2d 44, 48 (2d Cir. 1986) (“[c]opying may be inferred where a
plaintiff establishes that the defendant had access to the copyrighted work and that substantial
similarities exist as to protectible material in the two works.”).
Not all copying constitutes copyright infringement, and as the Second Circuit has
repeatedly stated, “[i]t is an axiom of copyright law that the protection granted a copyrightable
work extends only to the particular expression of an idea and never to the idea itself.” Reyher v.
Children’s Television Workshop, 533 F.2d 87, 90 (2d Cir. 1976). Furthermore, “[s]imply
because a work is copyrighted does not mean every element of that work is protected.” Boisson
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v. Banian, Ltd, 273 F.3d 262, 268 (2d Cir. 2001). Therefore, dismissal is appropriate where the
similarity concerns only non-copyrightable elements of plaintiff’s work or if no reasonable
factfinder could find the works substantially similar.
District courts may evaluate substantial similarity at the pleadings stage on a motion to
dismiss. See Peter F. Gaito Architecture, 602 F.3d at 64 (In ruling on a motion to dismiss, “no
discovery or fact-finding is typically necessary, because what is required is only a visual
comparison of the works.” (internal quotation marks omitted)); Effie Film, LLC v. Pomerance,
909 F. Supp. 2d 273, 290-91 (S.D.N.Y. 2012) (“Although substantial similarity analysis often
presents questions of fact, where the court has before it all that is necessary to make a
comparison of the works in question, it may rule on substantial similarity as a matter of law on a
Rule 12(b)(6) motion to dismiss.” (internal quotation marks omitted)).
“The standard test for substantial similarity between two items is whether an ordinary
observer, unless he set out to detect the disparities, would be disposed to overlook them, and
regard [the] aesthetic appeal as the same.” Yurman Design, Inc. v. PAJ, Inc., 262 F.3d 101, 111
(2d Cir. 2001) (alteration in original and internal quotation marks omitted). However, “a more
refined analysis is required where [the allegedly copied] work is not wholly original, but rather
incorporates elements from the public domain,” in which case a court must look for “substantial
similarity between those elements, and only those elements, that provide copyrightability to the
allegedly infringed [work].” Boisson, 273 F.3d at 272 (internal quotation marks omitted). The
Second Circuit has called this latter test the “more discerning” test, and in applying it, the Circuit
has cautioned courts “not to dissect the works at issue into separate components and compare
only the copyrightable elements,” but rather to be “guided by comparing the total concept and
feel of the contested works.” Id. (internal quotation marks omitted).
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More specifically, a court must “examine the similarities in such aspects as the total
concept and feel, theme, characters, plot, sequence, pace, and setting of the” works, while
“tak[ing] care to inquire only whether the protectible elements, standing alone, are substantially
similar.” Williams, 84 F.3d at 588 (internal quotation marks omitted). “[T]he total-concept-andfeel locution functions as a reminder that, while the infringement analysis must begin by
dissecting the copyrighted work into its component parts in order to clarify precisely what is not
original, infringement analysis is not simply a matter of ascertaining similarity between
components viewed in isolation.” Tufenkian Import/Export Ventures, Inc. v. Einstein Moomjy,
Inc., 338 F.3d 127, 134 (2d Cir. 2003).
Although there is an issue as to when plaintiff secured his copyright registration (as it
appears that his copyright postdates the publication of the Berns Cookbook), even if the Court
accepts that he had a valid copyright in 2007, plaintiff has failed to establish substantial
similarities between the 2007 Schleifer Cookbook and the Berns Cookbook. The below table
compares the infringing material that plaintiff identifies in his Amended Complaint and the
corresponding content in the Berns Cookbook (in blue italics).1
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In plaintiff’s original complaint, he included ten instances of infringement, but five of them were actually
comparisons from the 2016 Schleifer Cookbook. Because the Berns Cookbook was published before the 2016
Schleifer Cookbook, plaintiff deleted those allegations from his amended complaint. However, he did not do a
complete job – one of the remaining examples he includes in the amended complaint actually appears nowhere in
either the 2007 Schleifer Cookbook or the 2007 Amazon Schleifer Cookbook. Thus, this table only includes the
allegations in the amended complaint with some actual 2007 Cookbook bases.
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Alleged Infringements
from the Schleifer Cookbooks
“Using our spongy, crepe-like injera bread. . .
soaked through with the flavors and colors of
the food.”
Berns Cookbook
“Injera, a spongy, tangy . . . crepe-like bread,
that soaks up the yummy sauces from the
food that rests upon it.”
2007 Schleifer Cookbook at 3; 2007 Amazon
Schleifer Cookbook at 6; 2016 Schleifer
Cookbook at 7.
Berns Cookbook at 1.
“Tibs. . .this is a vegetarian spin on a popular
meat dish. . . . Tibs is similar to a saute, stirfry, or sizzle.”
“[T]ibs are traditionally meat-filled stir-fry
dishes.”
2007 Amazon Schleifer Cookbook at 20;
2016 Schleifer Cookbook at 33.
Berns Cookbook at 153.
“Berbere, a complex spice blend found in the
hotter traditional Ethiopian dishes….”
“[B]erbere is a spice blend made from
moderately hot red peppers and a slew of
other spices.”
2007 Schleifer Cookbook at 7; 2007 Amazon
Schleifer Cookbook at 1.
Berns Cookbook at 21.
“It is traditional for an Ethiopian hostess to
roll up some of the meal in a piece of Injera
and place the first bite in the guest’s mouth.”
“Ethiopian tradition of wrapping. . .foods in
injera and popping it into the mouths of
special friends.”
2007 Schleifer Cookbook at 16; 2007
Amazon Schleifer Cookbook at 10; 2016
Schleifer Cookbook at 15.
Berns Cookbook at 178.
These few common words provide no basis for a copyright infringement claim. First, the
factual content describing particular Ethiopian foods, ingredients, or culinary traditions is not
protectable as a matter of law. See 17 U.S.C. § 102(b) (“In no case does copyright protection for
an original work of authorship extend to any idea, procedure, process, system, method of
operation, concept, principle, or discovery, regardless of the form in which it is described,
explained, illustrated, or embodied in such work.”); Sparaco v. Lawler, Matusky, Skelly,
Engineers LLP, 303 F.3d 460, 466 (2d Cir. 2002) (noting that “historical, scientific, or factual
information belongs in the public domain”).
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To the extent the two works have general similarities – including the fact that both are
about vegetarian or vegan Ethiopian cuisine, the inclusion of illustrations of prepared dishes, and
descriptions of foods as spicy, spongy, or the like – these elements simply do not amount to a
claim for copyright violation. Instead, they are “scènes à faire,” or “unprotectible elements that
follow naturally from [the] work’s theme rather than from [the] author’s creativity.”
MyWebGrocer, LLC v. Hometown Info, Inc., 375 F.3d 190, 194 (2d Cir. 2004).
Plaintiff’s alleged similarities, with respect to the individual elements outlined above, are
insufficient to sustain his contention that the cookbooks are substantially similar within the
meaning of copyright law. Just as the court found in LaPine v. Seinfeld, No. 08 CIV. 128, 2009
WL 2902584, at *9 (S.D.N.Y. Sept. 10, 2009), aff’d, 375 F. App’x 81 (2d Cir. 2010), “[t]he
similarities identified by Plaintiffs are the result of the similar medium of expression used
(cookbooks) or of the similar subject matter that both cookbooks address [Ethiopian food].
Stock elements resulting from the initial choice of subject matter are not protectible.” The
Seinfeld court further observed that “when a cookbook is based on a particular idea or theme
(whether it be vegetarian cooking, grilling, or desserts), the individual recipes in that book are
certain to share that common theme and will likely share certain similarities with recipes in other
cookbooks based on the same idea.” Id.
Moreover, even the most belabored analysis of plaintiff’s allegations shows that his
complaint rests on scattered words and short phrases, neither of which are protectable. See
McDonald v. West, 138 F. Supp. 3d 448, 454 (S.D.N.Y. 2015), aff’d, 669 F. App’x 59 (2d Cir.
2016) (“Words and short phrases . . . rarely if ever exhibit sufficient originality to warrant
copyright protection”). I thus reject plaintiff’s argument that his content is “original expression
to engage the mind as to the flavors, textures, methods, and practice of the art of Ethiopian
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cuisine.” His cookbook is no such thing. His attempt to claim infringement based on scattered
phrases necessary to explain the common theme of vegetarian or vegan Ethiopian cuisine fails.
As to plaintiff’s generic assertion of substantial similarities, “numerous differences tend
to undercut substantial similarity.” Durham Industries, Inc. v. Tomy Corp., 630 F.2d 905, 913
(2d Cir. 1980); see also id. (“As a matter of logic as well as law, the more numerous the
differences between two works the less likely it is that they will create the same aesthetic impact
so that one will appear to have been appropriated from the other.”). Although the “compilation
of non-protectible facts is copyrightable if it features an original selection or arrangement of
facts, so that the selection or arrangement possesses at least some minimal degree of creativity,”
that is not the case here. MyWebGrocer, 375 F.3d at 193 (internal quotation marks and citation
omitted). Even if the Court were to consider the longer 2007 Amazon Schleifer Cookbook in
conducting its comparison, the 2007 Amazon Schleifer Cookbook and Berns Cookbook are
substantially dissimilar. The Berns Cookbook contains more than 185 pages of content,
including cultural history, ingredients lists, shopping lists, over 140 recipes, and over two-dozen
pages of photographs and illustrations. In contrast, the 2007 Amazon Schleifer Cookbook
contains only 46 numbered pages, including 12 recipes, six pages of commentary, a three-page
interview, and nine pages of black-and-white photographs. The “total concept and feel” of these
two works is distinct, and the abstract similarities that “follow naturally” from the works’
common theme of vegetarian Ethiopian cooking are not protectable. Lapine v. Seinfeld, 375 F.
App’x 81, 83 (2d Cir. 2010). Indeed, the 2007 Amazon Schleifer “Cookbook” is hardly even a
book; it is closer to a pamphlet.
Having considered the cookbooks at issue, both the alleged similarities and the total
concept and feel, neither the total look and feel of the two works, nor the points of similarity
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identified by plaintiff, are sufficient, as a matter of law, to support a finding of copyright
infringement. Put differently, no reasonable factfinder could conclude that an ordinary lay
observer would be disposed to overlook the disparities between the works and find them, in their
specifics or in their totality, to have the same aesthetic appeal. See Boisson, 273 F.3d at 272.2
II.
The Assessment of Attorney’s Fees & Costs Against Plaintiff and His Counsel Under
the Copyright Act & Pursuant to the Court’s Inherent Authority
A. Legal Standard
Under the Copyright Act, a “court in its discretion may allow the recovery of full
costs . . . [and] also award a reasonable attorney’s fee to the prevailing party” in a civil action
for copyright infringement. 17 U.S.C. § 505. Important here is that costs and attorney’s fees are
equally available to either a prevailing plaintiff or prevailing defendant. See Fogerty v. Fantasy,
Inc., 510 U.S. 517, 534 (1994). An award of attorney’s fees and costs is not automatic; rather,
the district court has the sole and broad discretion to determine whether such assessment would
be fair. See Knitwaves, Inc. v. Lollytogs Ltd., 71 F.3d 996, 1011 (2d Cir. 1995). “When
determining whether to award attorney’s fees, district courts may consider such factors as (1) the
frivolousness of the non-prevailing party’s claims or defenses; (2) the party’s motivation;
(3) whether the claims or defenses were objectively unreasonable; and (4) compensation and
deterrence.” Bryant v. Media Right Productions, Inc., 603 F.3d 135, 144 (2d Cir. 2010). “The
third factor – objective unreasonableness – should be given substantial weight.” Id.
2
The Court need not consider plaintiff’s claim for unjust enrichment, as it is well-settled that a claim for unjust
enrichment is preempted by the Copyright Act. See Briarpatch Ltd., L.P v. Phoenix Pictures, Inc., 373 F.3d 296,
305, 306-07 (2d Cir. 2004); Affiliated Records Inc. v. Taylor, 09 Civ. 9938, 2012 WL 1675589, at *5 (S.D.N.Y.
May 14, 2012).
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Additionally, as the Supreme Court recently noted, § 505 costs and fees should be
awarded in such a way that “encourages parties with strong legal positions to stand on their
rights and deters those with weak ones from proceeding with litigation.” Kirtsaeng v. John Wiley
& Sons, Inc., 136 S. Ct. 1979, 1986 (2016). Accordingly, the Court should “giv[e] substantial
weight to the reasonableness of a losing party’s position.” Id. at 1983.
The Court also has the inherent power to impose monetary sanctions on a litigant or his
counsel, including the assessment of attorney’s fees and costs. See Chambers v. NASCO, Inc.,
501 U.S. 32, 44-45 (1991). Under this inherent power, “a court may assess attorney’s fees when
a party [or lawyer] has ‘acted in bad faith, vexatiously, wantonly, or for oppressive reasons.’”
Id. at 45-46 (internal citation omitted).
B. Discussion
Here, an award of costs and fees under the Copyright Act is warranted because the factual
and legal contentions plaintiff argued were either frivolous or objectively unreasonable, and
there is a need in this case for both compensation and deterrence. First, the unreasonable nature
of plaintiff’s claims in this case is manifest. It was objectively unreasonable for plaintiff to have
believed that a colorable copyright action exists based on four examples of similar language in
what amounts to non-protectable factual descriptions of Ethiopian cuisine and culinary traditions.
The unreasonableness of plaintiff’s position is supported by the fact that plaintiff’s opposition to
the motion to dismiss contains a mere three-and-one-half pages arguing that his copyright claim
was actionable. The vast majority of those pages is the plain recitation of the legal standards,
which is to say that plaintiff could not point to any cases that would support his action because
there are none. Put differently, plaintiff’s position was so far afield that his attorneys could not
even defend against the motion to dismiss.
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This objective unreasonableness is compounded by the unreasonable manner in which
this case has been litigated, from plaintiff’s failure to properly investigate defendant’s
publisher’s letter explaining why his claim lacked merit and the legal arguments, to his
infringement allegations regarding content not actually contained in the 2007 Schleifer
Cookbook, but rather contained in the 2016 Schleifer Cookbook, to the inclusion of unsupported
infringement allegations in the amended complaint that nowhere appear in the 2007 Schleifer
Cookbook, to the bald assertion that the 20-page (or 46-page) 2007 Schleifer Cookbook is
“identical” to the 82-page 2016 Schleifer Cookbook. These allegations greatly exceed the
bounds of fair argument.
Plaintiff argues that he “wholeheartedly believes this lawsuit has merit and is not made in
bad faith,” but even if true, that is immaterial. The standard is “objective reasonableness,” not
subjective reasonableness. More fundamentally, a lay person’s wholehearted beliefs do not save
him or his attorneys from having to pay fees; it was incumbent on his attorneys to explain that
his copyright action was frivolous, and their failure to do that (and several other failings) leads
into why the Court will exercise its inherent authority to sanction plaintiff’s lawyers for
attorney’s fees and costs.
No reasonable copyright attorney, or even an attorney who had devoted 20 minutes to
legal research, would have filed this complaint. If plaintiff’s attorneys did not do the requisite
research when filing the complaint, surely they should have recognized the absence of merit
when preparing the opposition to the motion to dismiss. Despite seeing no supporting case law,
plaintiff’s attorneys forged onward.
Worse than that, I cannot comprehend how plaintiff sought statutory damages when he
had no copyright registration at the time that defendant published her book. It is axiomatic that
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statutory damages are only permitted when a plaintiff has a valid registration at the time of
infringement, Baker v. Urban Outfitters, Inc., 431 F. Supp. 2d 351, 363 (S.D.N.Y. 2006), aff’d,
249 F. App’x 845 (2d Cir. 2007), and here, plaintiff did not register his 2007 cookbook until
eight months ago. Such steadfast adherence to an untenable legal position and the submission of
false allegations and far-fetched arguments to this Court rise to a level of bad faith that compels
the imposition of attorney’s fees on both plaintiff and his attorneys.
Here, the award of costs and fees to defendant furthers the goals that the Supreme Court
and courts in this Circuit have repeatedly emphasized in copyright cases, i.e., compensation and
deterrence. When plaintiff filed this frivolous action, defendant had no choice but to engage
counsel and expend resources to litigate this case. Under these circumstances, the policies
behind the Copyright Act would be violated if this Court required defendant to bear her own
costs and fees. See Fogerty, 510 U.S. at 529 (“It is increasingly recognized that the person who
forces another to engage counsel to vindicate, or defend, a right should bear the expense of such
engagement and not his successful opponent . . . .” (internal quotation marks omitted)).
As to deterrence, an award of costs and fees is crucial here, so as to deter this plaintiff,
and other similarly situated plaintiffs, from bringing frivolous and objectively unreasonable
claims. There is also a need to deter attorneys who fail to comply with their obligations to the
Court to research and put forth good-faith claims and defenses. Therefore, the Court concludes,
in the exercise of its discretion, that an award of costs and attorney’s fees to defendant would
serve the purposes of the Copyright Act, and that such an award is necessary here.
The same reasons animate the Court’s assessment of sanctions on plaintiff’s attorneys.
Their conduct in this case can only be described as bad faith. Plaintiff’s attorneys failed to
perform a pre-litigation investigation and then failed to withdraw the claims when, on drafting
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the opposition to the motion to dismiss, they found no cases supporting their positions. Not only
could they not affirmatively support their case, but they could not even address the majority of
defendant’s substantive arguments. Plaintiff’s attorneys seemed to have taken the position that
they were going to roll the dice even though nothing in law or fact supported their filing or
prosecuting this suit.
Given the foregoing, it is appropriate that both plaintiff and his attorneys be jointly and
severally liable for the costs and fees, which the Court will assess after submission of billing
records by defendant.
Accordingly, defendant is ORDERED to submit, within 14 days of the date of this
Memorandum Decision and Order, her itemization of costs and her contemporaneous time and
billing records for defending this action. Plaintiff has 14 days from the filing of those records to
oppose the reasonableness of the amount of defendant’s fees and costs, and defendant has seven
days thereafter to reply.
The Court need not reach defendant’s argument regarding additional statutory sanctions.
The shifting of costs and attorney’s fees to plaintiff and his attorneys is sufficient to effect both
specific and general deterrence and compensate plaintiff for having to defend this action.
CONCLUSION
Defendant’s motion to dismiss and for attorney’s fees and costs is granted.
SO ORDERED.
Digitally signed by
Brian M. Cogan
U.S.D.J.
Dated:
Brooklyn, New York
July 19, 2017
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