Breadmore et al v. Jacobson
Filing
83
OPINION AND ORDER 77 RESPONSE, 72 Opposed AMENDED MOTION Opposed MOTION for Attorney Fees Opposed MOTION for Costs Opposed MOTION for Sanctions. ORDERED that Defendant James Jacobsons Motion for Costs, Attorneys fees, and Sanctions (Docume nt No. 72) is denied in part and granted in part.Defendant James Jacobson is GRANTED attorneys fees for his defense of the copyright claim only and is DENIED costs and sanctions.Defendant James Jacobson is hereby ORDERED to file within 20 days of the date of the entry of this order a request for attorneys fees relating to his copyright defense only with supporting documentation.(Signed by Judge Melinda Harmon) Parties notified.(jdav, 4)
United States District Court
Southern District of Texas
ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
PATRICK SCOTT BEARDMORE, et al,
Plaintiffs,
VS.
JAMES JACOBSON,
Defendant.
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March 31, 2016
David J. Bradley, Clerk
CIVIL ACTION NO. 4:13-CV-361
OPINION AND ORDER ON DEFENDANT’S MOTION FOR COSTS, ATTORNEYS’
FEES AND SANCTIONS
Defendant has filed a Motion for Costs, Attorneys’ fees, and Sanctions (Document No.
72). Plaintiffs filed a Response (Document No. 77) and Defendant then filed a Reply thereto
(Document No. 78). Having considered these filings, the facts in the record, and the applicable
law, the Court concludes Defendant’s Motion (Document No. 72) should be denied in part and
granted in part.
Attorney’s Fees
Defendant Jacobson seeks attorney’s fees under 17 U.S.C. § 505 and 28 U.S.C. § 1927
(Document No. 72 at 2).
17 U.S.C. § 505
This statute provides that “[i]n any civil action under this title, the court in its discretion
may allow the recovery of full costs by or against any party other than the United States or an
officer thereof. Except as otherwise provided by this title, the court may also award a reasonable
attorney’s fee to the prevailing party as part of the costs.” 17 U.S.C.A. § 505 (West). “Although
attorney’s fees are awarded in the trial court’s discretion, [in copyright cases] they are the rule
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rather than the exception and should be awarded routinely.” Alameda Films SA de CV v. Authors
Rights Restoration Corp. Inc., 331 F.3d 472, 483 (5th Cir. 2003)(citation omitted).
The statute states that attorney’s fees may only be provided to the “prevailing party.”
Jacobson was the prevailing party on the copyright infringement claim, as this Court dismissed
Plaintiffs’ claim at summary judgment (Document No. 68 at 29). “Enforceable judgments on the
merits are sufficient for prevailing-party status.” Tempest Publ’g, 2015 WL 6394414, at *2 (S.D.
Tex. Oct. 21, 2015 (citations omitted). Jacobson is therefore entitled to an award of attorney’s
fees1 for his defense of the copyright infringement claim, even though he was the defendant in
this case. Id. (“Prevailing plaintiffs and prevailing defendants are to be treated alike” under §
505.).
28 U.S.C. § 1927
This statute provides that “[a]ny attorney […] who so multiplies the proceedings in any
case unreasonably and vexatiously may be required by the court to satisfy personally the excess
costs, expenses, and attorneys’ fees reasonably incurred because of such conduct.” 28 U.S.C.A. §
1927. Awards under this statute are “penal in nature” and “[s]trict construction of this statute is
necessary so that the legitimate zeal of an attorney in representing her client is not dampened.”
Browning v. Kramer, 931 F.2d 340, 344 (5th Cir. 1991). “Therefore, before imposing such
sanctions, a court must ensure that, pursuant to the plain terms of § 1927, the offending
attorney’s multiplication of the proceedings was both ‘unreasonable’ and ‘vexatious’; evidence
of recklessness, bad faith, or improper motive must be present.” Travelers Ins. Co. v. St. Jude
1 In granting Defendant’s Motion for Summary Judgment (Document No. 40), this Court noted that Plaintiffs failed
even to state a claim of copyright infringement (Document No. 68 at 29). This shows sufficient frivolousness of the
claim without requiring an in-depth consideration of the guiding factors in Fogerty v. Fantasy. 510 U.S. 517, 539
n.19 (1994)(“These factors include 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. We agree that such factors may be used to guide courts’ discretion, so long as such
factors are faithful to the purposes of the Copyright Act.”)(internal citations and quotations omitted).
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Hosp. of Kenner, La., Inc., 38 F.3d 1414, 1416-17 (5th Cir. 1994)(citations omitted).
Defendant has not demonstrated recklessness, bad faith or improper motive on the part of
Plaintiffs’ counsel. Defendant alleges that Plaintiffs’ counsel did not withdraw the case nor
investigate sufficiently when informed “just six days after the filing of Plaintiffs’ Complaint”
that Defendant had never sold the App (Document No. 72 at 11). However, the Court agrees with
Plaintiffs’ counsel that “Defendant claimed previously he was trying to sell the App and had in
fact sold it to unnamed parties placing Plaintiff in the posture of having to decide which story is
true and which is not” (Document No. 77 at 16). Considering that there were messages to
Beardmore from the Defendant claiming to have sold the App (Plaintiffs’ Trial Exhibits 9, 10),
there is no evidence that Plaintiffs’ counsel was reckless, acted in bad faith or with an improper
motive in pursuing these claims. Even if Plaintiffs’ claims were both “meritless and frivolous,”
sanctions are not appropriate without this requisite level of intent. Stewart v. Courtyard Mgmt.
Corp., 155 F. App’x 756, 761 (5th Cir. 2005).
Costs
“Unless a federal statute, these rules, or a court order provides otherwise, costs--other
than attorney’s fees--should be allowed to the prevailing party.” Fed. R. Civ. P. 54. “[T]he word
‘should’ makes clear that the decision whether to award costs ultimately lies within the sound
discretion of the district court.” Tempest Publ’g, 2015 WL 6394414, at *1.
As described above, Jacobson was the prevailing party on the copyright infringement
claim, and “[t]he prevailing-party analysis is generally the same for awards of both attorney’s
fees and costs.” Id. at *10. However, the identity of the prevailing party for the entire litigation is
more complex, as all of Plaintiffs’ claims were dismissed, but Defendant also did not prevail on
any counterclaims. Baisden v. I'm Ready Prods., Inc., 804 F. Supp. 2d 549, 556 (S.D. Tex. 2011)
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aff’d, 693 F.3d 491 (5th Cir. 2012)(“The case must be viewed as a whole to determine who is the
prevailing party.”)(citations omitted). “A party does not have to prevail on all issues to be
entitled to an award of costs.” Honestech, Inc. v. Sonic Sols., 725 F. Supp. 2d 573, 581 (W.D.
Tex. 2010) aff’d, 430 F. App’x 359 (5th Cir. 2011)(citing United States v. Mitchell, 580 F.2d
789, 793 (5th Cir. 1978)). There can only be one prevailing party under Rule 54. Tempest
Publ’g, 2015 WL 6394414, at *3.
Viewing this case in its entirety, there was no prevailing party. Neither side prevailed on
a single claim, essentially maintaining the status quo prior to the lawsuit. Without a prevailing
party, neither side is entitled to costs under Rule 54.2
Sanctions
Sanctions under 28 U.S.C. § 1927 are discussed above. Defendant has also asked for
sanctions under Rule 11 of the Federal Rules of Civil Procedure. Rule 11(b) states that:
By presenting to the court a pleading, written motion, or other paper--whether by signing,
filing, submitting, or later advocating it--an attorney or unrepresented party certifies that
to the best of the person’s knowledge, information, and belief, formed after an inquiry
reasonable under the circumstances:
(1) it is not being presented for any improper purpose, such as to harass, cause
unnecessary delay, or needlessly increase the cost of litigation;
(2) the claims, defenses, and other legal contentions are warranted by existing law or by a
nonfrivolous argument for extending, modifying, or reversing existing law or for
establishing new law;
(3) the factual contentions have evidentiary support or, if specifically so identified, will
likely have evidentiary support after a reasonable opportunity for further investigation or
discovery; and
(4) the denials of factual contentions are warranted on the evidence or, if specifically so
identified, are reasonably based on belief or a lack of information.
Fed. R. Civ. P. 11. The rule also provides that “a motion for sanctions must be made separately
2 Therefore Defendant is not entitled to a portion of costs on the copyright claim under Rule 54, and § 505 does not
“provide otherwise,” as it actually expands Rule 54 discretion. Tempest Publ’g, 2015 WL 6394414, at *4. (“Rule
54(d)(1) governs unless a federal statute ... provides otherwise. A statute provides otherwise than Rule 54(d)(1) if it
is contrary to the rule. Because the Rule grants district courts discretion to award costs, a statute is contrary to the
Rule if it limits that discretion.”)(internal citations and quotations omitted).
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from any other motion” and provides a safe harbor whereby “[t]he motion […] must not be filed
or be presented to the court if the challenged paper, claim, defense, contention, or denial is
withdrawn or appropriately corrected within 21 days after service or within another time the
court sets.” Id. Defendant did not file his motion separately, and, according to Plaintiffs, failed to
notify them under the “safe harbor” (Document No. 77 at 14). Therefore, the Court declines to
consider the motion.
It is hereby ORDERED that Defendant James Jacobson’s Motion for Costs, Attorneys’
fees, and Sanctions (Document No. 72) is denied in part and granted in part.
Defendant James Jacobson is GRANTED attorney’s fees for his defense of the copyright
claim only and is DENIED costs and sanctions.
Defendant James Jacobson is hereby ORDERED to file within 20 days of the date of the
entry of this order a request for attorney’s fees relating to his copyright defense only with
supporting documentation in accordance with Johnson v. Ga. Highway Express, Inc., 488 F.2d
714 (5th Cir. 1974).
SIGNED at Houston, Texas, this 29th day of March, 2016.
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MELINDA HARMON
UNITED STATES DISTRICT JUDGE
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