Zalewski et al v. T.P. Builders, Inc. et al

Filing 214

MEMORANDUM-DECISION and ORDER - That Cicero's motion (Dkt. No. 25, 11-cv-1156) is DENIED as untimely. That T.P. and DeRaven's motions (Dkt. Nos. 196, 197) are GRANTED, however the awards requested are reduced to $120,972.50 in attorneys' fees for T.P., and $16,795.80 in attorneys' fees for DeRaven. That plaintiffs' letter requests (Dkt. No. 208, 209) are DENIED. Signed by Chief Judge Gary L. Sharpe on 11/21/2012. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
JAMES E. ZALEWSKI et al.,
Plaintiffs,

1:10-cv-876
(GLS/RFT)

v.
T.P. BUILDERS, INC. et al.,
Defendants.
________________________________
JAMES E. ZALEWSKI et al.,
Plaintiffs,

1:11-cv-1156
(GLS/RFT)

v.
CICERO BUILDER DEV., INC.
et al.,
Defendants.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFFS:
Lee Palmateer Law Office LLC
90 State Street, Suite 700
Albany, NY 12207
FOR THE DEFENDANTS:
T.P. Builders and Thomas Paonessa
Schmeiser, Olsen Law Firm
22 Century Hill Drive
Suite 302
Latham, NY 12110

LEE PALMATEER, ESQ.

ARLEN L. OLSEN, ESQ.

Cicero Building Dev., Inc
and Luigi Cicero
Office of Paul C. Rapp
P.O. Box 366
Monterey, MA 01245

PAUL C. RAPP, ESQ.

Roxanne K. Heller
and DeRaven Design & Drafting
Heslin, Rothenberg Law Firm
5 Columbia Circle
Albany, NY 12203

ANNETTE I. KAHLER, ESQ.
CAROLINE B. AHN, ESQ.
SUSAN E. FARLEY, ESQ.

Gary L. Sharpe
Chief Judge
MEMORANDUM-DECISION AND ORDER
I. Introduction1
Plaintiffs James Zalewski and Draftics, Ltd. commenced these
actions for copyright infringement under the Copyright Act of 1976, as
amended,2 against multiple defendants, including T.P. Builders, Inc. and
Thomas Paonessa (collectively “T.P.”); Roxanne K. Heller and DeRaven
Design & Drafting (collectively “DeRaven”); and Cicero Building Dev., Inc.
and Luigi Cicero (collectively “Cicero”). (See 3d Am. Compl., Dkt. No. 138,

1

Unless otherwise noted, docket citations refer to case No. 10-cv-876. Although
plaintiffs have filed a Notice of Appeal, (see Dkt. No. 199), the court maintains residual
jurisdiction over collateral matters such as attorneys’ fees and costs. See Tancredi v. Metro.
Life Ins. Co., 378 F.3d 220, 225 (2d Cir. 2004).
2

17 U.S.C. §§ 101-1332.

2

10-cv-876; Compl., Dkt. No. 1, 11-cv-1156.) In a Memorandum-Decision
and Order dated June 19, 2012, the court dismissed plaintiffs’ claims, and
entered judgment for defendants shortly thereafter. (See generally Dkt.
Nos. 194, 195.) Pending are T.P., DeRaven and Cicero’s motions for
attorneys’ fees and costs. (See Dkt. Nos. 196, 197; Dkt. No. 25, 11-cv1156.) For the reasons that follow, T.P. and DeRaven’s motions are
granted in part, and Cicero’s motion is denied.
II. Background
The court presumes the parties’ familiarity with the underlying facts
and procedural history as discussed in its previous Memorandum-Decision
and Order. (See Dkt. No. 194 at 3-7.)
III. Standard of Review
The Copyright Act provides that the court may award reasonable
attorneys’ fees to the prevailing party at its discretion. See 17 U.S.C. §
505. In making this determination, the court considers the following
factors: “‘frivolousness, motivation, objective unreasonableness (both in the
factual and in the legal components of the case) and the need in particular
circumstances to advance considerations of compensation and
deterrence.’” Fogerty v. Fantasy, Inc., 510 U.S. 517, 534 n.19 (1994)
3

(quoting Lieb v. Topstone Indus., Inc., 788 F.2d 151, 156 (3d Cir. 1986)).
While there is not a “precise rule or formula” in determining whether an
award of fees is appropriate, Silberstein v. Fox Entm’t Grp., Inc., 536 F.
Supp. 2d 440, 443 (S.D.N.Y. 2008) (internal quotation marks and citations
omitted), courts generally afford greater weight to the objective
reasonableness of a claim. See Matthew Bender & Co. v. West Publ’g Co.,
240 F.3d 116, 121-22 (2d Cir. 2001). Yet no matter what factors the court
considers, it must remain “faithful to the purposes of the Copyright Act.” Id.
at 121 (internal quotation marks and citations omitted). Thus, simply
deciding which party prevailed is not determinative, see Silberstein, 536 F.
Supp. 2d at 443, as “the interests of the Copyright Act” are served by any
claim—successful or not—that aides in, inter alia, demarcating “the
boundaries of copyright law,” Matthew Bender, 240 F.3d at 122 (internal
quotation marks and citations omitted). But see Matthews v. Freedman,
157 F.3d 25, 29 (1st Cir. 1998) (“Depending on other circumstances, a
district court could conclude that the losing party should pay even if all of
the arguments it made were reasonable.”)
IV. Discussion

4

Among other arguments,3 T.P. DeRaven and Cicero4 assert that
plaintiffs’ claims were objectively unreasonable, and thus, they are entitled
to attorneys’ fees and costs. (See Dkt. No. 196, Attach. 1 at 2-5; Dkt. No.
197, Attach. 1 at 8-12; Dkt. No. 25, Attach. 1 at 1-5, 11-cv-1156.) Relying,
in part, on the evolving nature of architectural copyright law, plaintiffs
counter that the causes of action contained in the Third Amended
Complaint were reasonable; however, in so doing, they implicitly concede
that the earlier Complaints were not legally sound. (See Dkt. No. 200 at 112.) Moreover, plaintiffs contend that even if attorneys’ fees are
appropriate, the fees requested are excessive. (See id. at 12-19.) The
court will address each of these arguments in turn.
3

A significant portion of the parties’ submissions are improvidently devoted to matters,
such as plaintiffs’ motivations for commencing these cases, that are wholly immaterial. With
respect to those matters, it suffices to say that the court is unpersuaded. By the same token,
defendants’ argument on the frivolity of plaintiffs’ claims is equally unavailing, and belied by the
record. Though the case was ultimately decided in defendants’ favor, it was done so after a
lengthy legal analysis in a relatively unsettled area of law. Accordingly, frivolousness, at least
as to the defendants who sought fees, is an improper basis to award fees in this case. Finally,
since the court is neither easily misled nor interested in refereeing collateral disputes between
the parties, plaintiffs’ requests to exclude certain motion papers and to file a surreply are
denied. (See Dkt. Nos. 208, 209, 212.)
4

Cicero did not file its motion until August 21, 2012, over one month after judgment
was entered in its favor. (See Dkt. Nos. 23, 25, 11-cv-1156.) However, “[u]nless a statute or
court order provides otherwise,” a motion for attorneys’ fees “must be filed no later than
[fourteen] days after the entry of judgment.” Fed. R. Civ. P. 54(d)(2)(B). While this is not an
inflexible rule, see,e.g., Tancredi, 378 F.3d at 226-27, Cicero not only failed to seek an
extension of time to file its motion, but also made no mention of timeliness, or the lack thereof,
in any of its submissions, (see generally Dkt. No. 25, 11-cv-1156). As such, Cicero’s motion is
denied as untimely, and further discussion of Cicero’s motion is unnecessary.

5

A.

Appropriateness of Attorneys’ Fees
While some are clearer than others, defendants’ arguments are

essentially the same; each cites the protracted nature of this litigation and
their ultimate success on the merits to support their contentions that
plaintiffs’ claims were objectively unreasonable. (See Dkt. No. 196, Attach.
1 at 2-5; Dkt. No. 197, Attach. 1 at 8-12; Dkt. No. 25, Attach. 1 at 1-5, 11cv-1156.) However, their reliance on at least the latter factor is misplaced,
as success alone is not dispositive. See Silberstein, 536 F. Supp. 2d at
443. Rather, in this Circuit, a finding of objective unreasonableness is
generally reserved for those claims “that are clearly without merit or
otherwise patently devoid of legal or factual basis.” Id. (internal quotation
marks and citations omitted). Applying this standard to plaintiffs’ Third
Amended Complaint, the court disagrees with defendants.
This is so for several reasons, including the fact that neither the
Second Circuit nor this court has established any clear precedent that
squarely fits the facts here. (See Dkt. No. 194 at 12-29.) Although the
court identified ample support for its conclusion that the works in question
were not substantially similar, it was only able to do so after conducting a
side-by-side comparison of the works, with a focus on the elements thereof
6

that constituted protected expression. (See id. at 29-38.) Indeed, it is quite
possible that this litigation, which is currently before the Circuit for review,
will clarify the threshold between those architectural works that are
sufficiently specific to warrant protection, and those that are not, as well as
the appropriate test for substantial similarity where the work is only
protectable as a compilation. Given these considerations, the court is
unpersuaded that plaintiffs’ causes of action in their Third Amended
Complaint lacked a legal or factual basis.
But the same cannot be said for plaintiffs’ earlier Complaints, which
were strewn with legal conclusions and lacked sufficient factual bases to
survive defendants’ motions to dismiss. (See generally Dkt. No. 133.) In
fact, plaintiffs did not even include copies of their works or proof of
copyright registration with either the Amended or Second Amended
Complaints. (See Am. Compl., Dkt. No. 11; 2d Am. Compl., Dkt. No. 60.)
And while there are in excess of eighty drawings attached to the original
Complaint, the description of the alleged infringement is nearly
unintelligible. (See Compl., Dkt. No. 1.) Finally, plaintiffs’ decision to name
numerous defendants who they now admit “bore no culpability,” (Dkt. No.
200 at 2), unnecessarily complicated the litigation. Among other reasons,
7

these infirmities lead the court to conclude that plaintiffs’ first three
Complaints were “patently devoid of [a] legal . . . basis.” Silberstein, 536 F.
Supp. 2d at 443.
In sum, having reviewed the record as a whole, and considering both
equity in awarding attorneys’ fees and the purposes served by doing so,
the court concludes that plaintiffs’ first three Complaints were objectively
unreasonable. On the contrary, plaintiffs’ Third Amended Complaint was
not so, as it advanced claims that will contribute to the demarcation of “the
boundaries of copyright law.” Matthew Bender, 240 F.3d at 122 (internal
quotation marks and citations omitted). It follows that T.P. and DeRaven’s
motions for attorneys’ fees are granted to the extent that they seek
attorneys’ fees for successfully defending against the first three
Complaints.
B.

Excessiveness of the Fees Requested
T.P. seeks $285,642.60 in attorneys’ fees for 931.9 hours of work,

with rates varying from $225 to $400 per hour, and $6,524.60 in costs.
(See Dkt. No. 196, Attach. 1 at 9-10.) And DeRaven, for its 339.8 hours of
work, requests $43,045 in attorneys’ fees, but includes no mention of costs.
(See Dkt. No. 197, Attach. 1 at 12-13.) Conversely, plaintiffs contend that
8

both the number of hours and hourly rates are excessive. (See Dkt. No.
200 at 12-19.) The court agrees with plaintiffs.
“Attorneys’ fees are awarded by determining a presumptively
reasonable fee, reached by multiplying a reasonable hourly rate by the
number of reasonably expended hours.” Bergerson v. N.Y. State Office of
Mental Health, Cent. N.Y. Psychiatric Ctr., 652 F.3d 277, 290 (2d Cir.
2011). The so-called “lodestar” is not always conclusive, but must, “absent
extraordinary circumstances,” be the starting point for a fee calculation.
Millea v. Metro-North R.R. Co., 658 F.3d 154, 166-69 (2d Cir. 2011). In
calculating the lodestar, the overwhelming majority of case-specific
circumstances, such as the novelty and complexity of the case, do not
warrant an adjustment; however, these factors are still relevant in
determining the reasonable hourly rate and “the reasonable number of
hours the case requires.” See id. at 167. Ultimately, while a detailed
tabulation is unnecessary, the court should, at a minimum, “provide the
number of hours and hourly rate it used to produce the lodestar figure.” Id.
at 166-67 (citing Perdue v. Kenny A. ex rel. Winn, 130 S. Ct. 1662, 1674
(2010)).
In the instant case, attorneys’ fees are only appropriate for the hours
9

spent defending against the first three Complaints. Consequently, the
hours T.P. and DeRaven spent on other parts of this litigation, including the
time they devoted to asserting and defending against cross-claims, and all
of the time spent on this matter after the Third Amended Complaint was
filed must be excluded from the total number of hours each provided.5
(See Dkt. No. 196, Attach. 4; Dkt. No. 197, Attach. 3.) To this end, T.P.’s
total number of compensable hours is reduced to 439.9—which reflects
21.4 hours for attorney Arlen Olsen and 418.5 hours for attorney Autondria
Minor—and DeRaven’s total number of compensable hours is reduced to
133.3. (See id.)
Turning to the reasonable hourly rate in this District, T.P.’s rates,
unlike the effective rate of $126 per hour DeRaven seeks, are excessive.
(See Dkt. No. 196, Attach. 1 at 9-10; Dkt. No. 197, Attach. 1 at 12-13.) As

5

To accomplish the reduction, the court removed all of the hours billed after
September 1, 2011, the date the Third Amended Complaint was filed, and those hours from
earlier dates that were clearly associated with tangential matters, such as cross-claims and
conferences with insurance carriers. (See Dkt. No. 196, Attach. 4; Dkt. No. 197, Attach. 3.)
Because plaintiffs offered only general observations on the number of hours billed, as opposed
to a line-by-line analysis, (see Dkt. No. 200 at 15-19), the court was forced to scrutinize the
records on its own. Its final tabulation is thus entirely equitable, as the reduction here balances
the compensation due under 17 U.S.C. § 505, with the factors the court must take into account
in reaching the lodestar figure. Moreover, notwithstanding T.P.’s request for costs, neither the
records provided, nor T.P.’s explanation of them, are sufficiently specific to permit the court to
identify the costs associated with the compensable portions of this litigation. (See Dkt. No.
196, Attach. 1 at 9-10; Dkt. No. 207 at 11; Dkt. No. 207, Attachs. 1-2.) It follows that T.P.’s
award will not include the $6,524.60 in costs its seeks.

10

Judge Miner stated in Bergerson, “The reasonable hourly rate should be
what a reasonable, paying client would be willing to pay, given that such a
party wishes to spend the minimum necessary to litigate the case
effectively.” 652 F.3d at 289-90 (internal quotation marks and citations
omitted). Applying this reasoning, the court recently noted that
the “prevailing hourly rates” in this District were “$210 per hour for an
experienced attorney, $150 per hour for an attorney with more than four
years experience, $120 per hour for an attorney with less than four years
experience, and $80 per hour for paralegals.” Broad. Music, Inc., v. DFK
Entm’t, LLC, No. 1:10-cv-1393, 2012 WL 893470, at *7 (N.D.N.Y. Mar. 15,
2012) (internal quotation marks and citation omitted). However, it also
alluded to the fact that the rates are “slightly higher now.” Id. Based on a
review of other decisions on attorneys’ fees in this District, the court
concludes that, in this case, the following are reasonable rates:6 $275 per
hour for partners; $200 per hour for an attorney with more than four years
experience; $170 per hour for an attorney with less than four years
experience; and $90 per hour for paralegals. After reviewing the record in
6

The court’s decision with respect to the reasonable hourly rates is case specific, and
has no binding precedential value on future fee applications. Determining a reasonable hourly
rate is properly left to the sound discretion of the trial judge in an individual case, and/or should
be established by the Board of Judges as a matter of District policy.

11

this case, and considering all of case-specific circumstances, the court
finds no reason to depart from these rates.
Here, both of T.P.’s attorneys are partners at Schmeiser, Olsen &
Watts, LLP. (See Dkt. No. 196, Attach. 1 at 8-9.) Multiplying the
reasonable number of hours that T.P spent on this litigation, 439.9, by the
reasonable hourly rate of $275 per hour, the appropriate award is
$120,972.50 in attorneys’ fees. Using the same methodology in calculating
DeRaven’s award, the appropriate sum is $16,795.80, which is the product
of 133.3 hours times DeRaven’s effective rate of $126 per hour. It follows
that T.P. and DeRaven’s motions are granted, however the awards
requested are reduced to $120,972.50 in attorneys’ fees for T.P., and
$16,795.80 for DeRaven.
V. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that Cicero’s motion (Dkt. No. 25, 11-cv-1156) is DENIED
as untimely; and it is further
ORDERED that T.P. and DeRaven’s motions (Dkt. Nos. 196, 197)
are GRANTED, however the awards requested are reduced to
$120,972.50 in attorneys’ fees for T.P., and $16,795.80 in attorneys’ fees
12

for DeRaven; and it is further
ORDERED that plaintiffs’ letter requests (Dkt. Nos. 208, 209) are
DENIED; and it is further
ORDERED that the Clerk provide a copy of this MemorandumDecision and Order to the parties.
IT IS SO ORDERED.
November 21, 2012
Albany, New York

13