Boehm, Scott et al v. Martin, Nicholas et al

Filing 724

ORDER granting in part #673 Motion for Attorney Fees. Plaintiffs Scott Boehm and David Stluka awarded attorney fees in the amount of $1,481.12. Signed by District Judge James D. Peterson on 1/31/2017. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

SCOTT BOEHM and DAVID STLUKA,
Plaintiffs,
v.

ORDER
15-cv-379-jdp

SCOTT SVEHLA, et al.,
Defendants.

The court sanctioned defendant Nicolas Martin for violating the preliminary
injunction in this copyright infringement case. Dkt. 668. The court ordered Martin to pay
plaintiffs’ reasonable actual attorney fees incurred in bringing a contempt motion against
him. Plaintiffs have now submitted their application for attorney fees totaling $5,924.50.
Dkt. 673. With their application for fees, plaintiffs attached an itemized invoice detailing the
time that plaintiffs’ attorney, Kevin McCulloch, and his team spent bringing the contempt
motion, as well as their billing rates. The court finds that McCulloch has adequately
supported the billing rates, but the reasonableness of the amount of time spent bringing the
contempt motion deserves further inquiry.
Martin asks the court to reduce plaintiffs’ fees by at least $2,500. He makes three
arguments in support of his request: (1) McCulloch emailed the itemized invoice to Martin’s
counsel the same afternoon he filed the fee application with the court, and so did not provide
Martin a reasonable opportunity to agree to the fees award; (2) the time spent drafting the
contempt motion was unnecessary because Martin had already conceded that he violated the
preliminary injunction; and (3) McCulloch should have known that the court would not
grant the extreme sanctions that plaintiffs requested in their contempt motion.

Although the court encouraged the parties to reach an agreement on the fees award,
McCulloch’s delay in sending the invoice to Martin is not a reason to reduce the fee award.
Martin could have negotiated an agreed-upon fee after plaintiffs filed their application, rather
than opposing the application. But the court agrees that plaintiffs’ contempt motion was
unnecessary. Martin stopped the infringing conduct as soon as plaintiffs notified him that he
was violating the preliminary injunction. He admitted he was in contempt. Yet plaintiffs
insisted on filing a contempt motion requesting, as sanctions, a punitive fine and judgment
for willful copyright infringement. This court has already declined to award punitive or
criminal sanctions multiple times in this case and another case in which McCulloch
represents plaintiffs. See Dkt. 242, at 6 and Dkt. 639, at 6; see also Dkt. 707 (denying
plaintiffs’ motion for reconsideration); Opinion & Order, Boehm v. Legends of the Field, LLC,
No. 15-cv-683 (W.D. Wis. Oct. 7, 2016), Dkt. 143, at 4-5. Plaintiffs’ contempt motion
wasted the court’s time and needlessly drove up the costs of litigation for both parties.
The court has discretion to “reduce the award to account for the limited success” of
the motion, Hensley v. Eckerhart, 461 U.S. 424, 436-37 (1983), and will do so here. Because
plaintiffs obtained none of the sanctions they requested in their contempt motion—except
the attorney fees and costs now at issue—the court will reduce McCulloch’s fees by threequarters, bringing the total fees to $1,481.12. The court finds that this amount is reasonable.

ORDER
IT IS ORDERED that:
1. Plaintiffs Scott Boehm and David Stluka’s motion for attorney fees, Dkt. 673,
is GRANTED in part.

2

2. Plaintiffs are awarded their reasonable attorney fees against defendant Nicolas
Martin in the amount of $1,481.12.
Entered January 31, 2017.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

3