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

Filing 754

ORDER denying #744 Motion for Reconsideration; granting in part #729 Motion to Amend the court's summary judgment order; granting in part #733 Motion for Attorney Fees. Svehla and Scott's Brewery Collectibles, LLC awarded attorney fees in the amount of $28,502; denying as moot #747 Motion for Leave to File a Reply. In light of plaintiffs' Rule 56(f) response, Dkt. #736 , defendants Luke Wein, Beyond Studio Publishing LLC, Nicholas Martin, and Gerald Miller are DISMISSED from the case. Signed by District Judge James D. Peterson on 11/8/2017. (jef),(ps) CC: Deft. Scott Gonnering via U.S. mail on 11/13/2017 (jef).

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

SCOTT BOEHM and DAVID STLUKA,
Plaintiffs,
v.
NICHOLAS MARTIN, et al.,

OPINION & ORDER
15-cv-379-jdp

Defendants.
On September 27, 2017, the court issued an order on the parties’ cross-motions for
summary judgment, concluding that claim preclusion bars any claim of infringement against
the Zimprich joint tortfeasors based on infringing copies made before January 16, 2015.
See Dkt. 727. In the wake of that order, the parties have filed several motions. The court will
address each in turn.
A. Plaintiffs’ motion for reconsideration
Plaintiffs move for reconsideration of the September 27 order. Dkt. 744. They contend
that the court erred in its application of claim preclusion to their claims. They move under
Federal Rules of Civil Procedure 54(b) and 60(b). The court will grant a motion under Rule
54(b) only when necessary “to correct manifest errors of law or fact or to present newly
discovered evidence.” Woods v. Resnick, 725 F. Supp. 2d 809, 827–28 (W.D. Wis. 2010)
(quoting Rothwell Cotton Co. v. Rosenthal & Co., 827 F.2d 246, 251 (7th Cir. 1987)). Rule 54(b)
“does not provide a vehicle for a party to undo its own procedural failures, and it certainly does
not allow a party to introduce new evidence or advance arguments that could and should have
been presented to the district court prior to the judgment.” Id. at 828 (quoting United States v.
Resnick, 594 F.3d 562, 568 (7th Cir. 2010)). Rule 60(b) provides for relief from “a final

judgment, order, or proceeding” on many grounds, including mistake and “any other reason
that justifies relief.” “[R]elief under Rule 60(b) is proper only under extraordinary
circumstances.” Hill v. Rios, 722 F.3d 937, 938 (7th Cir. 2013).
Plaintiffs challenge three aspects of the court’s decision on the application of claim
preclusion. Each of plaintiffs’ contentions could and should have been presented to the court
at summary judgment; plaintiffs offer no excuse for not doing so. The court will deny plaintiffs’
motion for this reason. And even if plaintiffs had advanced these contentions at summary
judgment, they wouldn’t have succeeded for reasons briefly addressed below.
Plaintiffs contend that the court erred in concluding that plaintiffs could have brought
claims against the joint-tortfeasor defendants in Boehm I. They could not have done so, they
argue, because “the Zimpriches failed to disclose the identity of any downstream resellers until
after Boehm I was dismissed.” Dkt. 745, at 5. A copyright claim accrues when the injured party
discovers, or reasonably should have discovered, the infringement. See Gaiman v. McFarlane,
360 F.3d 644, 653 (7th Cir. 2004). Even if plaintiffs did not discover the Zimprich joint
tortfeasors’ infringement until after Boehm I was dismissed, they have not shown that they
couldn’t reasonably have done so. They say that the Zimpriches “committed intentional and
egregious discovery abuses,” Dkt. 745, at 6, but they offer no evidence to support this assertion,
and they never moved to compel the Zimpriches’ discovery responses in Boehm I.
Plaintiffs also contend that the court erred in concluding that the joint-tortfeasor
defendants were in privity with the Zimpriches. They argue that the Zimpriches’ interests
weren’t aligned with the joint tortfeasors’ because the joint tortfeasors would have sought
indemnification from the Zimpriches. But that’s exactly why the joint tortfeasors are in privity
with the Zimpriches. By resolving all claims against the joint tortfeasors in the settlement

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agreement, the Zimpriches ensured that they would not be liable to the joint tortfeasors in the
future. The fact that the joint tortfeasors have not sought indemnification from the Zimpriches
only indicates that the Zimpriches’ plan worked.
Finally, plaintiffs contend that the court erred in concluding that the continued display,
sale, or distribution of previously made copies is not a new wrong giving rise to new claims
post-dating the Boehm I judgment. They cite a handful of Seventh Circuit cases that, they argue,
hold “that res judicata does not apply in situations of continued wrongful acts,” Dkt. 745, at 7,
and proffer policy arguments in support. The issue where one infringement ends and another
begins for purposes of claim preclusion has not been resolved by the Seventh Circuit. The court
carefully considered the issue and relevant case law and drew the line at copies made after the
Boehm I judgment. Even if plaintiffs had included these new citations and policy arguments in
their summary judgment briefing, the court’s conclusion would remain the same.
B. Plaintiffs’ Rule 56(f) response
In its September 27 order, the court identified several issues to resolve before trial
through judgment independent of the motion under Rule 56(f). It also ordered plaintiffs to
“identify by defendant and image each viable infringement claim that they intend to take to
trial” and notified plaintiffs that they “may proceed on only those claims at trial.” Dkt. 727,
at 40. Plaintiffs have responded. Dkt. 736. The court will address each issue in turn.
The first issue is Gonnering’s, Wredberg’s, and Wein’s infringement of photos for which
plaintiffs have adduced only vague descriptions of sports photos in these defendants’ emails.
In the September 27 order, the court explained, “The written descriptions of some of these
photos could refer to plaintiffs’ photos (e.g., one email asks for “2 clay matthews framed pics,”
and Boehm owns copyright in a photo of Clay Matthews), but they could also refer to other

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photos in which plaintiffs do not own copyright.” Dkt. 727, at 28–29. In response, plaintiffs
adduce evidence that they claim shows infringement by Wein: (1) Wein previously worked for
Legends, where he handled the printing of canvases and other products; (2) Wein downloaded
photos from Getty; and (3) Wein distributed photos to Waukesha Sportscards, which was in
partnership with the Zimpriches and Gameday Sports. But none of this evidence shows that
Wein actually infringed plaintiffs’ copyright. Wein’s association with people who have
infringed plaintiffs’ copyright is not evidence that Wein infringed plaintiffs’ copyright. As for
Gonnering and Wredberg, plaintiffs concede that they have no additional evidence of
infringement. They argue that judgment independent of the motion is nonetheless improper
because “absolute certainty is not required at the summary judgment stage.” Dkt. 736 at 2.
That’s true—what’s required is an evidentiary showing “sufficient to establish the existence of
an element essential to that party’s case, and on which that party will bear the burden at trial.”
Mid Am. Title Co. v. Kirk, 59 F.3d 719, 721 (7th Cir. 1995) (quoting Tatalovich v. City of Superior,
904 F.2d 1135, 1139 (7th Cir. 1990)). Plaintiffs have the burden of proving infringement at
trial, and they have not adduced evidence to establish infringement of the photos that they
claim are referred to in emails sent by Wein, Gonnering, and Wredberg. So the court will enter
judgment in those defendants’ favor on this issue. Because plaintiffs do not identify any claim
against Wein other than ones based on the email descriptions, the court will dismiss Wein and
his business, Beyond Studio Publishing LLC, from the case.
The second issue is Gonnering’s willfulness. In the September 27 order, the court
explained, “Plaintiffs argue that Gonnering was willfully blind to the infringing nature of photos
he bought from Wein because he did not question Wein about the legitimacy of the photos.
But this amounts to negligence at most, and plaintiffs have not shown that any of the photos

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Gonnering requested from Wein were actually infringing. The mere fact that Gonnering is in
the sports memorabilia business does not, without more, allow for a finding of willfulness.”
Dkt. 727, at 29. In response, plaintiffs cite several cases that they argue show that “such
recklessness is evidence of willfulness in the copyright context.” Dkt. 736, at 4. The court is
confident in its conclusion that Gonnering’s failure to question Wein about the legitimacy of
photos that may not have been infringing is not evidence of willful infringement. The court
invited plaintiffs to show “through citation to the record that there is a genuine dispute of
material fact” precluding summary judgment on the issue of Gonnering’s willfulness, not to
make legal arguments. Dkt. 727, at 40. Plaintiffs have not adduced any evidence of Gonnering’s
willfulness, so the court will enter judgment independent of the motion in Gonnering’s favor
on this issue.
The third issue is Thomason’s infringement of the White/Favre photo. In the September
27 order, the court explained, “Plaintiffs submit evidence that Thomason possessed the
White/Favre photo, but they do not present any evidence that Thomason sold, distributed,
displayed, or otherwise infringed on plaintiffs’ copyright in the White/Favre Photo.” Dkt. 727,
at 35. In response, plaintiffs adduce Thomason’s photo of Brett Favre signing a copy of the
White/Favre photo, Dkt. 498-85, at 14, and a “Top Products” list from Thomason that
includes a product labeled “Brett Favre & Reggie White.” Dkt. 498-75, at 4. The “Top
Products” list indicates that it is “Sorted by Qty Sold,” and the “Brett Favre & Reggie White”
product is listed 128 out of 319. Id. at 1, 4. A reasonable juror could conclude that the “Brett
Favre & Reggie White” product featured the White/Favre photo and that Thomason sold it, or
at least publicly displayed it while offering it for sale. So the court will not grant judgment in
Thomason’s favor on this claim of infringement, and it will proceed to trial.

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Finally, plaintiffs list the infringement claims that they intend to bring to trial. See Dkts.
736-1 through 736-5. The court accepts these lists with the understanding that plaintiffs may
not proceed to trial on claims on which the court is entering judgment under Rule 56(f). One
final comment on this point. Plaintiffs indicate that they intend to bring infringement claims
against Thomason concerning three photos of A.J. Hawk and three photos of Jay Cutler. See
Dkt. 736-4. Neither party moved for summary judgment on claims concerning these photos,
so it’s unclear what evidence plaintiffs have to support them. But one of plaintiffs’ earlier filings
lists Thomason’s “Top Products” list as evidence of infringement—specifically, the description
“AJ Hawk Action Photo” is adduced as evidence of infringement of three different Hawk photos
and the description “Jay Cutler Ready to Pass … 16x20” is adduced as evidence of infringement
of three different Cutler photos. Dkt. 494-13, at 2, 3. If these product names are the only
evidence of infringement of these six photos, these claims suffer from the same evidentiary
deficiencies as the claims based on email descriptions discussed above, and plaintiffs should
not waste time by bringing them to trial.
C. Martin and Miller’s motion to amend
Defendants Nicholas Martin and Gerald Miller move the court to amend its summary
judgment order under Rules 52(b) and 59(e). Dkt. 729. A motion under Rule 59(e), just like
one under Rule 54(b), “will be successful only where the movant clearly establishes: ‘(1) that
the court committed a manifest error of law or fact, or (2) that newly discovered evidence
precluded entry of judgment.’” Cincinnati Life Ins. Co. v. Beyrer, 722 F.3d 939, 954 (7th Cir.
2013) (quoting Blue v. Harford Life & Accident Ins. Co., 698 F.2d 587, 598 (7th Cir. 2012)).
Here, Martin and Miller contend that the court committed errors of law and fact. First,
they contend that because the court granted their summary judgment motion, it should dismiss

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them from the case. They point to evidence they submitted in support of their summary
judgment motion. First, they adduce Miller’s declaration, in which Miller indicated that “[a]ll
of the merchandise that [he] purchased for resale that [is] the subject of the plaintiffs’ claims
of copyright infringement [he] purchased prior to January 9, 2015 from On 2 The Field,” the
Zimpriches’ business. Dkt. 477, ¶ 4. Second, they adduce Martin’s declaration, in which
Martin indicated that ““[a]ll of the merchandise that [he] purchased for resale that [is] the
subject of the plaintiffs’ claims of copyright infringement [he] purchased prior to January 9,
2015 from” Miller. Dkt. 476, ¶ 2. Plaintiffs challenged these declarations as “self-serving,” but
as the court explained in its summary judgment order, that objection is frivolous. Dkt. 727, at
2. But plaintiffs point out in their motion for reconsideration that there is an act of
infringement at issue in this suit that does not concern merchandise purchased for resale;
specifically, Martin previously admitted “that he copied Boehm’s photograph of Soldier Field
from another website and posted it as a full-screen background on a page of his website.” Dkt.
668, at 1. Because this act violated the court’s preliminary injunction, plaintiffs moved for
sanctions. Dkt. 635. The court awarded attorney fees and costs but declined to enter judgment
of willful copyright infringement against Martin, explaining, “There is no dispute that Martin
infringed Boehm’s copyright in this image, but whether he did so willfully is an open question.
. . . Plaintiffs are not entitled to judgment that Martin willfully infringed this image, although
his conduct will be an appropriate factor to consider if the court is asked to set damages.” Dkt.
668, at 3. Neither party moved for summary judgment on this act of infringement. And
plaintiffs do not list this photo as one that they intend to bring to trial; indeed they do not list
any claims against Martin and Miller that they intend to take to trial. Because plaintiffs indicate

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that they are not pursuing any claims against Martin and Miller, the court will dismiss them
from the case.
Second, Martin and Miller contend that the court made a factual error in its summary
judgment opinion by characterizing the Soldier Field photo as belonging to plaintiffs. They
point to several references to “a Soldier Field photograph” in plaintiffs’ summary judgment
materials and argue that plaintiffs failed to identify the photo as one in which either plaintiff
has a copyright interest. But elsewhere, plaintiffs identify a Soldier Field photo as belonging to
Boehm. Most significantly, they proposed the following finding of fact:
On October 6, 2015, Martin submitted an amended status report
stating that he had in his possession seven (7) items featuring
Plaintiffs’ photographs: one stretched canvas image of Clay
Matthews, five plaques featuring Plaintiff Boehm’s photo of Soldier
Field, and one stretched canvases of the same image of Soldier Field.
Dkt. 565, ¶ 154 (emphasis added). Martin and Miller did not dispute that fact. Id. The very
next proposed fact stated:
The Zimpriches printed copies of a Soldier Field photograph that
they had received from Miller, which were then sold and/or
distributed to Defendants Martin and Svehla.
Id. ¶ 155. Martin and Miller disputed this fact, contending that they had not provided any
Soldier Field photo to the Zimpriches. Id. They never argued that they provided a Soldier Field
photo but that it wasn’t Boehm’s photo. Certainly, plaintiffs could have been more precise.
But Martin and Miller could have advanced this argument in their summary judgment briefing.
They did not. The court correctly drew all favorable inferences from the facts in plaintiffs’ favor
when deciding Martin and Miller’s summary judgment motion; it was a fair inference from the
undisputed facts that Miller gave Boehm’s Soldier Field photo to the Zimpriches. The court

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declines to amend its summary judgment order regarding the Soldier Field photo. Regardless,
Martin and Miller are still dismissed from the case.
D. Svehla and SBC’s motion for attorney fees
In its September 27 order, the court granted summary judgment in favor of defendants
Scott Svehla and Scott’s Brewery Collectibles, LLC, and dismissed them from the case. Svehla
and SBC now move for an award of attorney fees and costs and for an order holding plaintiffs’
counsel jointly and severally liable for some of the award. Dkt. 733.
1. Grounds for attorney fees
The Copyright Act allows district courts to “award a reasonable attorney’s fee to the
prevailing party.” 17 U.S.C. § 505. District courts have broad discretion to award fees under
several guiding principles. See Moffat v. Acad. of Geriatric Physical Therapy, No. 15-cv-626, 2017
WL 4217174, at *1–2 (W.D. Wis. Sept. 20, 2017). “First, the court cannot grant ‘attorney
fees as a matter of course, [but] must make a more particularized, case-by-case assessment.’”
Id. (quoting Kirtsaeng v. John Wiley & Sons, Inc., 136 S. Ct. 1979, 1985 (2016)). “Second, the
court ‘may not treat prevailing plaintiffs and prevailing defendants any differently.’” Id.
(quoting Kirtsaeng, 136 S. Ct. at 1985). The district court should consider “the totality of the
circumstances,” including the following factors: “(1) frivolousness of claims or defenses;
(2) motivation of the parties; (3) objective unreasonableness; and (4) ‘the need in particular
circumstances to advance considerations of compensation and deterrence.’” Id. (quoting
Kirtsaeng, 136 S. Ct. at 1985).
In addition, the Seventh Circuit instructs district courts to consider “the strength of the
prevailing party’s case and the amount of damages or other relief the party obtained.” Id. at *2
(quoting Klinger v. Conan Doyle Estate, Ltd., 761 F.3d 789, 791 (7th Cir. 2014)). “If the case

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was a toss-up and the prevailing party obtained generous damages, or injunctive relief of
substantial monetary value, there is no urgent need to add an award of attorneys’ fees.” Klinger,
761 F.3d at 791. But if “the claim or defense was frivolous and the prevailing party obtained
no relief at all, the case for awarding attorneys’ fees is compelling.” Id. “A prevailing defendant,
who by definition does not obtain monetary relief, is ‘entitled to a “very strong” presumption
in favor of receiving attorney fees.’” Moffat, 2017 WL 4217174, at *2 (quoting Klinger, 761
F.3d at 791).
Here, Svehla and SBC make no monetary recovery, so they are entitled to a
presumption that they should recover their fees. But this presumption is not dispositive. Id.
This case presents a unique situation in which plaintiffs’ infringement claims against SBC were
far from frivolous; SBC admitted to infringing plaintiffs’ copyrights in four photos. SBC
avoided liability only because plaintiffs’ claims were precluded by Boehm I. The claim preclusion
issue was not a toss-up, but it was far from a slam-dunk defense. And as plaintiffs point out,
Svehla and SBC did not articulate the claim preclusion defense at summary judgment, relying
instead on related defenses of release and full compensation. Svehla and SBC’s successful
defense actually depended in large part on their co-defendants’ claim preclusion arguments.
On the other hand, plaintiffs did not submit evidence of SBC’s willfulness or Svehla’s personal
liability sufficient to withstand summary judgment, so if plaintiffs’ claims had not been
precluded, their recovery would have been limited to the non-willful infringement of four
works, providing for statutory damages of no more than $120,000. See 17 U.S.C. § 504(c). As
for plaintiffs’ litigation conduct, the court has previously noted plaintiffs’ proclivity to waste
the court’s time and needlessly drive up the costs of litigation for the parties. See Dkt. 724, at
2. Plaintiffs’ litigation tactics have resulted in a web of litigation spanning six cases, dozens of

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defendants, and many thousands of pages in briefing. Plaintiffs’ refusal to narrow in on those
claims for which they have evidentiary support has needlessly drawn out litigation and driven
up costs for Svehla and SBC. In sum, the fact that SBC avoided liability only because the
Zimpriches had negotiated a broad release of claims and their co-defendants articulated a
successful defense based on those claims militates against awarding fees, but the fact that
plaintiffs’ litigation conduct forced SBC and Svehla to defend other claims that lacked an
evidentiary basis militates in favor of an award. So the court will award Svehla and SBC only
part of their attorney fees.
Plaintiffs contend that regardless of the factors discussed above, an award of fees would
not be faithful to the purpose of the Copyright Act. See Fogerty v. Fantasy, Inc., 510 U.S. 517,
534, n.19 (“[F]actors may be used to guide courts’ discretion, so long as such factors are faithful
to the purposes of the Copyright Act . . . .”). As plaintiffs acknowledge, the ultimate purpose
of the Copyright Act is to enrich “the general public through access to creative works.”
Kirtsaeng, 136 S. Ct. at 1986 (quoting Fogerty, 510 U.S. at 527). Plaintiffs argue that awarding
attorney fees to Svehla and SBC would “allow[] businesses to profit from the commercial
exploitation of copyrighted works without rewarding the authors for their creations while also
penalizing them for filing suit.” Dkt. 741, at 14. But that mischaracterizes the outcome of this
suit. Application of claim preclusion here acknowledges that plaintiffs have been rewarded for
their creations. (If plaintiffs haven’t been given the reward they were promised, the answer is
a suit for breach of contract—which they have brought—not successive infringement claims.)
And an award of fees here serves to encourage “useful copyright litigation” while discouraging
unreasonable litigation, results that “promote the Copyright Act’s purposes, by enhancing the

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probability that both creators and users (i.e., potential plaintiffs and defendants) will enjoy the
substantive rights the statute provides.” Kirtsaeng, 136 S. Ct. at 1986–87 (emphasis added).
2. Amount of attorney fees
Next, the court must determine the amount of fees. The court uses a lodestar method
to determine a reasonable fee, “in which the court considers whether the attorney’s hourly rate
and the hours spent are reasonable.” Moffat, 2017 WL 4217174, at *5. Svehla and SBC seek a
total of $85,506 in fees for the 180.75 hours that their attorneys and summer associate spent
working on this case and 20.2 hours of paralegal time. The hourly rates charged for this work
were between $140 and $520. Plaintiffs do not dispute the reasonableness of these rates, and
because they are the actual billing rates, they are presumptively reasonable. See Pickett v.
Sheridan Health Care Ctr., 664 F.3d 632, 640 (7th Cir. 2011).
As for the reasonableness of the hours that Svehla and SBC’s attorneys billed, the court
must determine “the number of hours reasonably expended,” id. at 639, which does not include
hours that were “excessive, duplicative, or unnecessary” or hours than an attorney would not
normally bill to a paying client. Stark v. PPM Am., Inc., 354 F.3d 666, 674 (7th Cir. 2004).
Here, Svehla and SBC’s attorneys did bill all of their hours to Svehla and SBC. See Dkt. 735, ¶
9 (indicating that counsel billed Svehla and SBC for all work except that performed in
September 2017, which presumably would be billed in October). Plaintiffs argue that the
majority of these hours were spent in discovery or on Svehla and SBC’s motion for summary
judgment and so were “a result of [Svehla and SBC’s] own litigation strategy.” Dkt. 741, at 16.
This argument is a non-starter. Engaging in discovery and filing a successful motion for
summary judgment are reasonable tasks for defense counsel. The court will not reduce the
hours billed for this reason.

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Plaintiffs also complain that Svehla and SBC’s attorneys “block billed,” that is, that
their billing records included entries with “vague and improperly grouped-together tasks.” Id.
at 17. Block billing, while disfavored, is not in itself a reason to reduce the hours billed; rather,
it is when block billing “makes it impossible for the court to determine what share of each
tainted block of time is actually compensable” that attorney fees may be reduced by the blockbilled hours. BB Syndication Servs., Inc. v. First Am. Title Ins. Co., No. 10-cv-195, 2013 WL
11322617, at *3 (W.D. Wis. July 1, 2013). Plaintiffs do not argue that the billing entries
contain any potentially non-compensable time. The hours that Svehla and SBC’s attorneys
billed were reasonably expended, so the court will not reduce them.
But as explained above, the unique circumstances of this case, in which SBC avoided
liability despite indisputably infringing plaintiffs’ copyrights but was forced to defend itself and
Svehla on several other baseless grounds, call for only a partial award of attorney fees. So the
court will hold plaintiffs responsible for $28,502, one third of the total amount billed to Svehla
and SBC in this case.
3. Sanctions under 28 U.S.C. § 1927
Under 28 U.S.C. § 1927, counsel “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.” The standard
under § 1927 is “objective bad faith”: sanctions are appropriate when counsel “pursues a path
that a reasonably careful attorney would have known, after appropriate inquiry, to be
unsound.” Boyer v. BNSF Ry. Co., 824 F.3d 694, 708 (7th Cir. 2016).
Svehla and SBC contend that plaintiffs’ counsel should be sanctioned because he was
the driving force behind plaintiffs’ litigation conduct. As discussed above, that litigation

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conduct has been wasteful. Plaintiffs’ counsel chose to pursue claims of willfulness and personal
liability that lacked evidentiary support. But pursuing the infringement claims at the heart of
this suit was not objectively unreasonable. Keeping in mind the Seventh Circuit’s instruction
to impose sanctions under § 1927 “sparingly,” Hartmax Corp. v. Abboud, 36 F.3d 862, 867 (7th
Cir. 2003), the court declines to sanction plaintiffs’ counsel under § 1927. But let this serve as
a strong warning to counsel to stop pursuing claims without evidentiary support and raising
arguments that the court has already rejected.

ORDER
IT IS ORDERED that:
1. Plaintiffs Scott Boehm and David Stluka’s motion for reconsideration, Dkt. 744, is
DENIED.
2. Defendants Nicholas Martin and Gerald Miller’s motion to amend the court’s
summary judgment order, Dkt. 729, is GRANTED in part.
3. In light of plaintiffs’ Rule 56(f) response, Dkt. 736, defendants Luke Wein, Beyond
Studio Publishing LLC, Nicholas Martin, and Gerald Miller are DISMISSED from
the case.
4. Defendants Scott Svehla and Scott’s Brewery Collectibles, LLC’s motion for
attorney fees, Dkt. 733, is GRANTED in part. Svehla and Scott’s Brewery
Collectibles, LLC, are entitled to attorney fees in the amount of $28,502.
5. Defendants Scott Svehla and Scott’s Brewery Collectibles, LLC’s motion for leave
to file a reply, Dkt. 747, is DENIED as moot.
Entered November 8, 2017.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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