Schleifer v. Berns
MEMORANDUM DECISION AND ORDER, Defendant's motion for attorney's fees 29 and plaintiff's motion for a reduction in fees 30 are both granted in part and denied in part. Plaintiff Ian Schleifer and his attorneys are jointly and severally liable for $13,371.15 attorneys' fees and costs. The fees and cost are to be paid to defendant's counsel within thirty days, failing which judgment shall enter. So Ordered by Judge Brian M. Cogan on 9/08/2017. (Lee, Tiffeny)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
DECISION AND ORDER
17 Civ. 1649 (BMC)
COGAN, District Judge.
Plaintiff brought this copyright infringement action alleging that defendant’s Ethiopian
cookbook violated the copyright that plaintiff possesses for his own previously-published
Ethiopian cookbook. Defendant moved to dismiss the amended complaint pursuant to Federal
Rule of Civil Procedure 12(b)(6) and for attorney’s fees and sanctions, both of which I granted.
See Schleifer v. Berns, No. 17 CIV. 1649, 2017 WL 3084406, at *1 (E.D.N.Y. July 19, 2017). I
found the latter award of fees warranted under the Copyright Act, 17 U.S.C. § 505, because
plaintiff had pursued factual and legal contentions that were either frivolous or objectively
unreasonable, and the latter award of sanctions warranted because counsel’s lack of
investigation, research, and attention to this matter based on these manifest deficiencies rose to a
level of bad faith that warranted sanctions. I therefore ordered that plaintiff and his firm be
jointly and severally liable for the attorney’s fees defendant incurred in connection with her
defense of this case. I had not assessed the amount of the award, as I had no briefing or evidence
on the matter, so I ordered defendant to submit her itemization of costs and her contemporaneous
time and billing records for defending this action.
Defendant filed her motion, including an itemization of costs, seeking $29,365 in
attorney’s fees and $316.15 in reimbursable costs. As part of his opposition to defendant’s
motion, plaintiff moved for reconsideration, asking this Court to reconsider the assessment of
attorney’s fees and sanctions, or in the alternative, to reduce the amount of fees and sanctions.
For the reasons that follow, plaintiff’s motion for reconsideration is denied, but plaintiff’s
alternative motion for a reduction in fees is granted, and defendant’s motion for fees is granted in
Plaintiff moves for reconsideration under Federal Rule of Civil Procedure 59(e), which
permits the Court to “alter or amend a judgment to correct a clear error of law or prevent
manifest injustice;” having considered the arguments, this motion is denied. Reconsideration “is
generally not favored,” and a court may properly grant it “only upon a showing of exceptional
circumstances.” Marrero Pichardo v. Ashcroft, 374 F.3d 46, 55 (2d Cir. 2004). A court will not
grant a motion for reconsideration “unless the moving party can point to controlling decisions or
data that the court overlooked . . . that might reasonably be expected to alter the conclusion
reached by the court.” Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995).
Moreover, a party may not use a motion for reconsideration to “relitigate an issue already
decided” by advancing novel arguments that could have been raised previously. Id.; see also
Kalamas v. Consumer Solutions REO, LLC, 09-CV-5045, 2011 WL 6026303, at *1 (E.D.N.Y.
Nov. 30, 2011) (holding that reconsideration should not be granted where the moving party
“seeks to introduce additional facts not in the record on the original motion” or “advances new
arguments or issues that could have been raised on the original motion”); Montblanc-Simplo
GmbH v. Colibri Corp., 739 F. Supp. 2d 143, 147 (E.D.N.Y. 2010) (“A motion for
reconsideration may not be used to advance new facts, issues or arguments not previously
presented to the Court, nor may it be used as a vehicle for relitigating issues already decided by
the Court.”). Simply put, motions for reconsideration are not vehicles for “taking a second bite
at the apple.” Analytical Surveys, Inc. v. Tonga Partners, L.P., 684 F.3d 36, 52 (2d Cir. 2012)
(internal citation omitted).
Plaintiff’s argument regarding the objective unreasonableness of plaintiff’s claim is
essentially “a second bite at the apple” that asks the Court for an opportunity to relitigate the
issue. I therefore reject this argument. As to the additional arguments regarding plaintiff’s
motivation, the “chilling effect of attorney’s fee awards,” and the absence of misconduct by
plaintiff, the former two should have been raised as part of plaintiff’s opposition to defendant’s
first motion for fees and sanctions, and the Court need not consider arguments that could have
been, but were not, previously raised. As to the latter, plaintiff misunderstands Kerin v. U.S.
Postal Service, 218 F.3d 185, 190 (2d Cir. 2000), and Sierra Club v. United States Army Corps
of Engineers, 776 F.2d 383, 390 (2d Cir. 1985), which required conjunctive meritlessness and
bad faith as to the award of sanctions under the Court’s inherent authority. This Court did find
both meritlessness and bad faith on the part of plaintiff’s counsel when awarding sanctions, not
as to plaintiff himself. As to plaintiff himself, the basis for fees was the Copyright Act, which
imposes no such conjunctive requirement.
Plaintiff’s arguments regarding the propriety of this Court’s assessment of sanctions
against plaintiff’s counsel under the Court’s inherent authority are also nothing more than an
attempt to relitigate the issue with contentions that should have been raised previously.
Plaintiff’s counsel had the opportunity to make these arguments, but counsel failed to devote
more than a few lines to the motion for sanctions.
In any event, nothing in plaintiff’s arguments changes the Court’s determination
regarding the propriety of sanctions against counsel. Even a layperson, like plaintiff, should
have known that there was no basis for this complaint. If his attorneys told him otherwise, that is
between him and them. Moreover, to the extent an award of attorneys’ fees chills parties and
their attorneys from bringing cases like this one, it ought to. The deterrence of litigation with no
objective basis is one reason why the Copyright Act allows recovery of attorneys’ fees. See
Kirtsaeng v. John Wiley & Sons, Inc., 136 S. Ct. 1979, 1986 (2016). For these reasons,
plaintiff’s motion for reconsideration as to the assessment of attorney’s fees and sanctions is
In determining the amount to be awarded, the Court continues to be guided by the
overarching purposes of the Copyright Act, that is, compensation and deterrence. See Matthew
Bender & Co. v. W. Pub. Co., 240 F.3d 116, 122 (2d Cir. 2001) (citing Fogerty v. Fantasy, Inc.,
510 U.S. 517, 534 n. 19 (1994)). In determining a reasonable attorney’s fee award, district
courts use a “lodestar” calculation, which is “the product of a reasonable hourly rate and the
reasonable number of hours required by the case,” to reach a “presumptively reasonable fee.”
Millea v. Metro-North R.R. Co., 658 F.3d 154, 166 (2d Cir. 2011). The test is whether the
plaintiff “spen[t] the minimum necessary to litigate the case effectively.” Simmons v. N.Y. City
Transit Auth., 575 F.3d 170, 174 (2d Cir. 2009) (internal quotation marks omitted). The Second
Circuit has made clear that district courts should “be guided by the traditional criteria in
determining a reasonable . . . fee, including: (1) the time and labor expended by counsel; (2) the
magnitude and complexities of the litigation; (3) the risk of the litigation; (4) the quality of
representation; (5) the requested fee in relation to the settlement; and (6) public policy
considerations.” Goldberger v. Integrated Res., Inc., 209 F.3d 43, 50 (2d Cir. 2000) (internal
quotation marks and ellipsis omitted).
Keeping these factors in mind, the Court finds that defendant’s request for $29,365 in
attorney’s fees is excessive. Although plaintiff concedes and the Court recognizes the
reasonableness of defense counsel’s hourly rate of $350, given their resumes and experience with
these sorts of cases, the number of hours expended – 83.9 hours – is too many in light of the
weakness of plaintiff’s case and counsel’s experience with copyright cases.
First, it seems inherently excessive and redundant that defendant expended 6.5 hours
drafting the pre-motion conference letter in anticipation of the motion to dismiss, 33.7 hours on
the motion to dismiss itself, and then 19 hours on the reply brief, for a total of 59.2 hours. The
minimum necessary hours to have effectively litigated the motion to dismiss in this case cannot
be nearly 60 hours when the case was so patently deficient. In fact, the research necessary to
draft the pre-motion conference letter should certainly have transferred to the motion to dismiss
and reply. With much of the legwork already done in light of the pre-motion conference letter,
the motion itself should not have taken more than 10 to 15 hours. Moreover, even though
plaintiff filed an amended complaint after defendant filed her motion to dismiss, the changes to
the amended complaint were so minimal that the Court in fact saw no need to reinitiate motion
practice. 1 Accordingly, the application for 19 collective hours on the reply is excessive.
It is well-settled that a court should not compensate counsel for hours that are “excessive,
redundant, or otherwise unnecessary.” Hensley v. Eckerhart, 461 U.S. 424, 434 (1983). Here, a
In an ECF Order, dated June 14, 2017, the Court ordered the following:
The amendments plaintiff has made to his complaint are responsive to the argument in defendant’s
motion to dismiss relating to plaintiff’s failure to reference the second edition, but they are not
responsive to much else in the motion. Therefore, although the amended complaint is a pleading
to which a responsive filing is required, defendant need not resubmit her motion to dismiss. The
Court deems defendant’s motion to dismiss the complaint at [ECF No. 14] to be defendant’s
motion to dismiss the amended complaint. Therefore, plaintiff’s opposition is due 6/28/2017 and
defendant’s reply is due 7/5/2017. Defendant, to the extent she feels it necessary, may include
arguments regarding the amendments in her reply.
reasonable number of hours to have spent on the pre-motion conference letter, motion to dismiss,
and reply is no more than 25 hours, especially in light of the duplication of arguments and the
reliance on many of the same cases across all of the filings.
It is similarly unreasonable that counsel spent 3.5 hours conducting a “Preliminary Case
and Pleadings Review,” when the complaint was only seven pages. Nor is it clear from the
itemization which portions of time were preliminary “case review” and which were “pleadings
review.” Because the itemization fails to apprise the Court properly of where the time was spent,
the Court will not allow fees for this task. Nor will the Court permit fees for 1.2 hours of “Court
Correspondence,” as the only court correspondence on the docket (apart from the pre-motion
conference letters) is a barely one-page letter asking the Court to adjourn the initial status
The Court will, however, award fees for defense counsel’s communications with their
client, among themselves, and with plaintiff’s counsel, for a total of 6.3 hours. The Court also
has no idea from where in the itemization the .5 hours of “General Research” comes, and without
more, counsel has no entitlement to payment for this task. The same is true for counsel’s billing
of .5 hours under “Miscellaneous.”
The final category of billing relates to defendant’s fee application to this Court, which
totaled 12 hours. Half of the application is a general recitation of counsel’s qualifications and a
description of their firm and cases, and counsel’s declarations (which largely duplicate parts of
this aspect of the letter). The remainder of the fee request includes the print-outs of the
itemizations and billing records, counsel’s resumes, defendant’s own declaration, and her
documented expenses, all of which would have (or certainly should have) been collated and put
together by support staff. Accordingly, 12 hours of attorney time for the fee request letter is
excessive in light of what is new or tailored in the fee request letter-motion. A reasonable
amount of time spent on such a request is six hours.
Thus, based on the itemization of costs, the Court finds an appropriate award to be 37.3
hours of work at a rate of $350 per hour, for a total of $13,055 plus the requested $316.15 in
reimbursable costs, which I find reasonable. The total award of attorney’s fees and sanctions, to
be paid jointly and severally by plaintiff and his counsel, is therefore $13,371.15. Not only does
this figure represent a reasonable calculation of the number of hours that was minimally
necessary in light of the weakness of plaintiff’s case, but also, it does not disproportionally
punish plaintiff and his counsel.
These reductions are further supported by consideration of plaintiff’s financial position,
which “may be a factor considered in determining the magnitude of an award once it has been
resolved that such an award is appropriate.” Penguin Books US.A., Inc. v. New Christian
Church of Full Endeavor, Ltd., No. 96 Civ. 4126, 2004 WL 728878, at *6 (S.D.N.Y. Apr. 6,
2004); accord Contractual Obligation Prods., LLC v. AMC Networks, Inc., 546 F. Supp. 2d 120,
132 (S.D.N.Y. 2008) (“Courts assessing attorney’s fee applications in copyright actions may
consider the relative financial strengths of the parties in determining whether an award of fees is
appropriate.”); Leibovitz v. Paramount Pictures Corp., No. 94 Civ. 9144, 2000 WL 1010830, at
*5 (S.D.N.Y. July 21, 2000) (“Courts addressing fee applications [in the context of a copyright
action] have considered the relative financial strength of the parties” in determining whether an
award of attorney’s fees is appropriate.). Here, plaintiff is the sole earner in his family,
supporting his wife and infant daughter.
However, his financial situation does not support vacating the award of attorney’s fees
and costs. The legal underpinnings for those holdings are based in statute and Supreme Court
precedent: Costs and fees under the Copyright Act 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, 136 S. Ct. at 1986.
Defendant’s motion for attorney’s fees  and plaintiff’s motion for a reduction in fees
 are both granted in part and denied in part. Plaintiff Ian Schleifer and his attorneys are
jointly and severally liable for $13,371.15 attorneys’ fees and costs. The fees and cost are to be
paid to defendant’s counsel within thirty days, failing which judgment shall enter.
Digitally signed by Brian M.
Brooklyn, New York
September 8, 2017
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