Broadcast Music Inc et al v. Medlin

Filing 17

OPINION AND ORDER granting 15 Motion for Attorney Fees as set out. Signed by Honorable J Michelle Childs on 8/12/15.(alew, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ANDERSON/GREENWOOD DIVISION

Broadcast Music, Inc.; Stone Diamond
Music Corp.; Emi Virgin Songs, Inc.
d/b/a Emi Longitude Music; Sure-Fire
Music Company, Inc.; House of Cash, Inc.;
Sony/ATV Songs LLC - Sony ATV Tree
Publishing d/b/a Sony/ATV Tree Publishing;
Rondor Music International, Inc. d/b/a
Irving Music; Sony/ATV Songs LLC;
Suffer in Silence Music; Sams Jamming Songs;
Concord Music Group, Inc. d/b/a Jondora Music,
Plaintiffs,

v.
Barbara Sue Medlin, individually and
d/b/a Sue’s Wings & Things,
Defendant.

)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)

Civil Action No.:
8:14-cv-00559-JMC

OPINION AND ORDER

This matter is before the court on Plaintiffs’ Petition for Attorney Fees and Costs
(“Petition for Fees and Costs”). (ECF No. 15.) Plaintiffs’ Petition for Fees follows the court’s
Order granting Plaintiffs’ Motion for Default Judgment. (ECF No. 13.) Pursuant to 17 U.S.C. §
505 (1976) and the court’s Judgment in favor of Plaintiffs (ECF No. 14), Plaintiffs seek attorney
and paralegal fees in the amount of $2,239.50 and costs in the amount of $497.82 – for a total of
$2,737.32.

(ECF No. 15.)

Defendant has filed no response to the court’s Judgment and

Plaintiffs’ Petition for Fees and Costs. For the following reasons, the court GRANTS Plaintiffs’
Petition for Fees and Costs in full.

1

I. RELEVANT BACKGROUND TO PENDING MOTION
On February 28, 2014, Plaintiffs filed a Complaint against Defendant alleging copyright
infringement in violation of the United States Copyright Act of 1976 (“Copyright Act”), 17
U.S.C. §§ 101–805. (ECF No. 1.) Defendant did not timely file an Answer or otherwise plead,
as reflected in the Affidavit of Default and of Non-military Service filed on April 28, 2014.
(ECF No. 7-1.) The Clerk of Court properly entered default as to Defendant on April 28, 2014.
(ECF No. 8.) On July 1, 2014, Plaintiffs filed a Motion for Default Judgment which the court
granted on January 30, 2015. (ECF Nos. 9, 13.) The court’s Judgment provided that Plaintiffs
recover $28,000.00 from Defendant, which included post judgment interest at the rate of .17 %,
along with costs including reasonable attorney’s fees. (ECF Nos. 13, 14.) Thereafter, Plaintiffs
filed the instant Petition for Fees and Costs along with supporting Declarations by Bernie W.
Ellis (ECF No. 15-1) and Thomas W. Epting (ECF No. 15-3).
II. LEGAL STANDARD AND ANALYSIS
The Copyright Act provides that the court, in its discretion, may award costs and
reasonable attorney’s fees to the prevailing party. See Allora, LLC v. Cambridge Builders of
Johnston County, Inc., 532 F. App’x 349, 351 (4th Cir. 2013) (unpublished) (citing § 505). The
Supreme Court has defined a prevailing party as “a party in whose favor a judgment is entered,
regardless of the amount of damages awarded.” Id. (quoting Buckhannon Bd. & Care Home,
Inc. v. W. Va. Dep’t of Health & Human Res., 532 U.S. 598, 603 (2001)). In determining
whether fees should be awarded, courts consider:
(1) the motivation of the parties, (2) the objective
reasonableness of the legal and factual positions advanced, (3)
the need in particular circumstances to advance considerations
of compensation and deterrence, and (4) any other relevant
factor presented.

2

Id. at 351-52 (quoting Diamond Star Bldg. Corp. v. Freed, 30 F.3d 503, 505-06 (4th Cir. 1994))
(citation and internal quotation marks omitted); Rosciszewski v. Arete Assocs., Inc., 1 F.3d 225,
234 (4th Cir. 1993). If a court determines to award attorney’s fees, it must then determine the
reasonableness of amounts requested by considering the following factors:
(1) the time and labor expended; (2) the novelty and difficulty of
the questions raised; (3) the skill required to properly perform the
legal services rendered; (4) the attorney's opportunity costs in
pressing the instant litigation; (5) the customary fee for like work;
(6) the attorney's expectations at the outset of the litigation; (7) the
time limitations imposed by the client or circumstances; (8) the
amount in controversy and the results obtained; (9) the experience,
reputation and ability of the attorney; (10) the undesirability of the
case within the legal community in which the suit arose; (11) the
nature and length of the professional relationship between attorney
and client; and (12) attorneys' fees awards in similar cases.
SER Solutions, Inc. v. Masco Corp., 103 F. App’x 483, 489 (4th Cir. 2004) (quoting Barber v.
Kimbrell's, Inc., 577 F.2d 216, 226 n.28 (4th Cir. 1978)).
Here, Plaintiffs’ Petition for Fees and Costs meets the four-prong standard for
determining whether fees should be awarded to a prevailing party. The court’s Order granting
Plaintiffs’ Motion for Default Judgment stated that: “Given the repeated warning from Plaintiffs .
. . the court finds Defendant’s conduct to be willful.” (ECF No. 13 at 4-5.) The court reached
this conclusion based on the legal and factual positions advanced. (See id. (indicating court’s
analysis).) Moreover, Plaintiffs’ Motion for Default Judgment indicates that Plaintiffs attempted
to resolve this issue through emails, telephone calls, and “cease and desist” letters. (ECF No. 9.)
The court acknowledged Plaintiffs’ attempts and stated: “The court deems an injunction
reasonable to prevent future copyright infringements given Defendant’s failure to comply with

3

copyright laws in the past despite multiple warnings and reasonable opportunities to do so.”
(ECF No. 13 at 5.)1
As for the amount of the fees and costs, the court’s consideration of the Barber factors
indicates that the amount requested by Plaintiffs is reasonable. Plaintiffs indicate that a total of
12.6 hours were spent on this matter. (ECF Nos. 15-2, 15 at 3 (specifying that 3.9 hours were
spent by attorney Bernie W. Ellis at a rate of $325.00 to $335.00 per hour, and that 8.7 hours
were spent by paralegal Dana H. Hayes at a rate of $110.00 per hour). Plaintiffs have filed a
Declaration from attorney Thomas W. Epting confirming that the rate is a customary fee for like
work. (ECF No. 15-3.) Additionally, Plaintiffs indicate that the cost amounts to $497.82, which
consists of a filing fee, service for a summons and complaint, postage, and copies. (Id.) Having
reviewed the remaining Barber factors regarding novelty of issues raised, skill required by
counsel, counsel’s expectation at the outset of the litigation, results obtained and the amount in
controversy, experience and reputation of the counsel, nature and length of counsel’s relationship
with the client, fee awards in similar cases (ECF No. 15-4 (referencing award in a similar case)),
and the ability of the parties to pay – the court finds both the rate and the hours to be reasonable.
III. CONCLUSION
For the following reasons, the court GRANTS Plaintiffs’ Petition for Fees and Costs
(ECF No. 15) in full and awards attorney’s fees in the amount of $2,239.50 and costs in the
amount of $497.82 -- for a total award of $2,737.32.
IT IS SO ORDERED.

1

The court observes that Plaintiffs indicate that there are no other significant factors for the court
to consider. (ECF No. 15 at 3.)
4

United States District Judge
August 12, 2015
Columbia, South Carolina

5