FameFlynet, Inc. v. The Shoshanna Collection, LLC et al

Filing 61

OPINION re: 50 MOTION to Alter Judgment Pursuant to Rule 59(e), filed by The Shoshanna Collection, LLC, Shoshanna Group, Inc., 45 MOTION for Attorney Fees and Costs, filed by FameFlynet, Inc. Based on the conclusions s et forth above, the motion of the Defendants to modify the October 2 Opinion is denied. The motion of the Plaintiff for attorneys' fees, as modified, in the amount of $17,620 is granted. It is so ordered. (Signed by Judge Robert W. Sweet on 2/1/2018) (ras)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
------------------------------------x

FAMEFLYNET, INC.,
Plaintiff,
-against-

16 Civ. 7645

(RWS)

OPINION

THE SHOSHANNA COLLECTION, LLC
AND SHOSHANNA GROUP, INC.,
Defendants.
-------------------------------------x

APPEARANCES:

Attorneys for Plaintiff
SANDERS LAW, PLLC
100 Garden City Plaza, Suite 500
Garden City, NY 11530
By:
Craig B. Sanders, Esq.
Jonathan M. Cader, Esq.
Erica Carvajal, Esq.

Attorneys for Defendants
PRYOR CASHMAN LLP
7 Times Square
New York, NY 10036
By:
Robert J. deBrauwere
Ryan S. Klarberg, Esq.

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Sweet, D.J.

Plaintiff FameFlyNet,

Inc.

("FFN" or the "Plaintiff")

has moved for an award of attorney fees and costs, pursuant to
17 U.S.C. § 505, to be granted under this Court's October 2,
2017 Opinion (the "October Opinion")

(Dkt.

41). Defendants, The

Shoshanna Collection, LLC and Shoshanna Group,

Inc.

(collectively, the "Defendants") have moved to alter or amend
the October 2, 2017 Judgment
pursuant to Rule 59(e)

(the "Judgment")

(Dkt.

42),

of the Federal Rules of Civil Procedure.

Based on the facts and conclusions set forth below, the
Defendants' motion to alter or amend the judgment is denied,

and

the Plaintiff's motion for attorney fees is granted in part.

I.

Prior Proceedings & Facts

The proceedings in this action for copyright
infringement were set forth in the October Opinion, which
granted damages of $750 to the Plaintiff. The factual background
and procedural history of this litigation is detailed in the
October Opinion,

familiarity with which is assumed.

See

FameFlynet, Inc. v. Shoshanna Collection, LLC, No. 16 Civ. 7645,
2017 WL 4402568, at *1

(S.D.N.Y. Oct. 2, 2017).

1

The Plaintiff filed the instant motion for attorney
fees on October 16, 2017, and the Defendants filed the motion to
alter or amend the judgment pursuant to Rule 59(e) on October
26, 2017, both of which were heard and marked fully submitted on
December 6, 2017.

II.

The Defendants' Motion for Reconsideration is Denied

"It is well-settled that Rule 59 is not a vehicle for
relitigating old issues, presenting the case under new theories,
securing a rehearing on the merits, or otherwise taking a
'second bite at the apple'.

"Analytical Surveys, Inc. v.

Tonga Partners, L.P., 684 F.3d 36, 52

(2d Cir. 2012)

Sequa Corp. v. GBJ Corp., 156 F.3d 136, 144

(quoting

(2d Cir. 1998))

Rather, "the standard for granting [a Rule 59 motion for
reconsideration] is strict, and reconsideration will generally
be denied unless the moving party can point to controlling
decisions or data that the court overlooked." Id. quoting
Shrader v. CSX Transp., Inc.,

70 F.3d 255, 257

(2d Cir. 1995)

(brackets in original).

"[R]econsideration of a previous order is an
extraordinary remedy to be employed sparingly." Pascazi v.
Rivera, No. 13 Civ. 9029 (NSR), 2015 WL 5783944, at *l (S.D.N.Y.
2

Oct. 1, 2015)

(quoting In re Health Mgmt. Sys., Inc.

Litig., 113 F. Supp. 2d 613,

614

(S.D.N.Y. 2000)

Sec.

(internal

citation omitted). As the Second Circuit has stated, "a motion
to reconsider should not be granted where the moving party seeks
solely to relitigate an issue already decided." Shrader,

70 F.3d

at 257. Rather, "[t]he major grounds justifying reconsideration
are an intervening change of controlling law, the availability
of new evidence, or the need to correct a clear error or prevent
manifest injustice." Doe v. New York City Dept. of Social
Services,

709 F.2d 782, 789 (2d Cir. 1983)

(internal quotations

and citations omitted). To this end, "the moving party has a
heavy burden to establish factual error sufficiently serious to
merit an amendment." Wallace v. Brown, 485 F. Supp. 77, 79
(S.D.N.Y. 1979).

In this case, Defendants have not brought any new
factual matters or legal points to the Court's attention.
Rather, every factual matter or controlling point of law
referenced in Defendants' current motion was both raised by
Defendants in the summary judgment motions and considered by the
Court in its ruling. Defendants have failed to show at the very
outset that they are entitled to relief under Rule 59.
Accordingly, the Defendants have failed to meet the standard for
a Rule 59(e) motion as set forth above, particularly in view of
3

the discretion exercised by this Court in granting the damage
award within the statutory framework.

III. The Plaintiff's Motion for Attorney's Fees is Granted in
Part

In determining an attorney's fee award, a court must
first calculate the "presumptively reasonable fee." Arbor Hill
Concerned Citizens Neighborhood Ass'n v. Cnty. of Albany
Albany Cnty. Bd. of Elections,

&

522 F.3d 182, 190 (2d Cir. 2008)

Historically, the starting point for calculating attorneys'

fees

has been the lodestar method, which involves setting an hourly
rate, multiplying it by the hours reasonably expended, and
finally adjusting the award in light of case-specific factors.
Id. at 187. However, the Second Circuit has found that the

lodestar method's "value as a metaphor has [been] deteriorated
to the point of unhelpfulness." Id. at 190. Instead, a court
should, "in exercising its considerable discretion,

[] bear in

mind all of the case-specific variables that [the Second
Circuit] and other courts have identified as relevant to the
reasonableness of attorney's fees .

" Id.

Specifically, the Second Circuit has pointed to the
factors outlined in Johnson v. Georgia Highway Express,
4

488 F.2d

714

(5th Cir. 1974) that courts should consider in determining

the fee award. The twelve factors are:
(1) The time and labor required; (2) the novelty and
difficulty of the questions; (3) the level of skill
required to perform the legal services properly; (4)
the preclusion of employment by the attorney due to
the acceptance of the case; (5) the attorney's
customary hourly rate; (6) whether the fee is fixed or
contingent; (7) the time limitations imposed by the
client or the circumstances; (8) the amount involved
in the case and the results obtained; (9) the
experience, reputation, 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.
Arbor Hill,

522 F.3d at 186 n.3

(quoting Johnson,

488 F.2d at

717-19). Moreover, a "reasonable hourly rate is the rate a
paying client would be willing to pay .

. bear[ing] in mind

that a reasonable, paying client wishes to spend the minimum
necessary to litigate the case effectively." Id. At 190. The
Supreme Court has held that "other considerations [] may lead
the district court to adjust the fee upward or downward,
including the important factor of the 'results obtained,'" which
"is particularly crucial where a plaintiff is deemed
'prevailing' even though he succeeded on only some of his claims
for relief." Hensley v. Eckerhart, 461 U.S. 424, 434

(1983).

The Defendants have presented unrebutted evidence with
respect to the conduct of this litigation and other actions
brought by Plaintiff's counsel. On September 29, 2016,
5

Plaintiff's counsel filed five nearly identical complaints on
behalf of FFN and Barcroft Media. See deBrauwere Declaration in
Opposition to Plaintiff's Motion for Fees, Exhibit A
("deBrauwere Deel. in Opp. Ex. A"). They also filed nine other
nearly identical complaints the preceding three days, and two
more the following week. See deBrauwere Deel. in Opp. Ex. B.
Plaintiff's counsel has employed work from their other cases and
was aware throughout the pendency of this action that the
license fee for use of the infringed photograph at issue here
was $75.

Plaintiff's counsel did not employ any clerical staff
to perform clerical work. In a number of instances, Craig
Sanders, Esq.

("Sanders"), the highest billing attorney on the

matter, filed documents and prepared a table of contents. See,
generally, Sanders Deel. Ex. 1. Attorneys who are overqualified

for clerical tasks are not allowed to be paid at their hourly
rate for this work. See Microsoft Corp. v. Computer Care Center,
Inc., No. 06 Civ. 1429 (SLT), 2008 WL 9359718, at *14

Apr. 8, 2 0 0 8)

( citation omitted)

(E.D.N.Y.

( reducing fees where the

attorney "billed at a partner's rate for a variety of tasks that
could have been performed by an associate or even clerical
staff"); see also Davis v. N.Y. City Haus. Auth., No. 90 Civ.
628, 2002 WL 31748586, at *3-4

(S.D.N.Y. Dec. 6, 2002)
6

(noting

that substantial reductions should be made for hours spent
preparing exhibits, proofreading, and other non-legal matters);
Bridges v. Eastman Kodak Co., No. 91 Civ. 7985

47304, at *7-8
Cir. 1996)

(RLC), 1996 WL

(S.D.N.Y. Feb. 6, 1996), aff'd, 102 F.3d 56 (2d

(disallowing charges by attorneys for clerical work

such as filing and mailing).

A review of the time records submitted as billing
invoices establishes that a reasonable expenditure of time by
Sanders for the preparation of the complaint is three

(3) hours,

for court appearances and preparation of the summary judgment
materials is twenty (20) hours, and five
abortive settlement discussion.

(5) hours for the

1

A similar review of the time reasonably expended by
the associates of Plaintiff's counsel establishes that Erica
Carvajal, Esq.

("Carvajal") spent twenty (20) hours conducting

discovery and assisting with respect to the summary judgment
motion, and eight (8) hours for Jonathan Cader, Esq.

("Cader")

with respect to the same tasks.

The Defendants' version of these discussions is unrebutted and the
positions taken by Plaintiff's counsel appear arbitrary to an extreme extent.

7

As for hourly rates, the Plaintiff seeks an hourly
rate for Sanders of $700, for Carvajal of $400, and for Cader of
$500. Also, Sanders has stated that his Garden City, Long
Island-based law firm is a "boutique."

(Sanders Deel. Ex.

12).

The Second Circuit has noted that there is a disparity in hourly
rates between smaller and larger firms, and that this should be
taken into account when deciding a fee motion. See Chambless v.

Masters, Mates

&

Pilots Pension Plan, 885 F.2d 1053, 1058-59 (2d

Cir. 1989). Moreover, Plaintiff's counsel is based in the
Eastern District, where rates are lower than those sought in
this proceeding. See e.g., Musical Prods., Inc.

Corp., No. 05-cv-5903

(FB)

(E.D.N.Y. Sep. 23, 2009)

(VVP),

v. Roma's Record

2009 WL 3052630, at *10 n.3

(finding that attorney hourly rates in

a copyright case were excessive when a partner billed at $425 an
hour, and associates billed at $250, $165, and $150); see also

Sheldon v. Plot Commerce, No. 15-cv-5885 (CBA)
5107072

(E.D.N.Y. Aug. 26, 2016)

(CLP), 2016 WL

($300 per hour is appropriate

for a senior associate or an associate who is specialized in
intellectual property); Telebrands Corp. v. HM Import USA Corp.,
No. 09-cv-3492
2012)

(ENV)

(RLM), 2012 WL 3930405

(E.D.N.Y. July 26,

(granting $400 per hour for partners and $265 per hour for

associates in copyright infringement case); Realsongs v. 3A N.

Park Ave. Rest Corp.,
(granting attorneys'

749 F. Supp. 2d 81,

92

(E.D.N.Y. 2010)

fees at rates of $425 for partners and $325
8

for senior associates, where attorneys were experts in
intellectual property).

Plaintiff has cited FameFlynet, Inc. v. AllHipHop.com

LLC, No. 16 Civ. 2210 (PGG)

(S.D.N.Y. Sept. 15, 2016) to support

the contention that the hourly rates requested have been deemed
"reasonable." However, in that action, an analysis regarding the
hourly rates was made, and the court entered an unopposed
default judgment against the Defendant. Following the most
appropriate authority in the Eastern District, cited above, the
motion of the Plaintiff is granted in part and Plaintiff will be
granted a reasonable attorneys' fee of $400 an hour for Sanders
and $265 an hour for Carvajal and Cader.

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IV.

Conclusion

Based on the conclusions set forth above, the motion
of the Defendants to modify the October 2 Opinion is denied. The
motion of the Plaintiff for attorneys' fees, as modified, in the
amount of $17,620 is granted.

It is so ordered.

New York, NY
February / , 2018

SWEET
U.S.D.J.

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