Case 2:09-cv-06076-ODW-RZ Document 31 Filed 06/21/10 Page 1 of 6 Page ID #:795
`
`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
`CIVIL MINUTES - GENERAL
`Case No. CV 09-6076 ODW (RZx)
`Jordan Scott v. Stephenie Meyer, et al.
`Title
`
`Date
`
`June 21, 2010
`
`O
`
`Otis D. Wright II, United States District Judge
`Present: The Honorable
`Not reported
`Raymond Neal
`Tape No.
`Court Reporter / Recorder
`Deputy Clerk
`Attorneys Present for Defendants:
`Attorneys Present for Plaintiffs:
`Not present
`Not present
`Proceedings (In Chambers): Order GRANTING Motion for Attorney’s Fees [23]
`
`Now before the Court is Defendants’ Stephenie Meyer (“Meyer”); Little, Brown and
`Company; Hachette Book Group, Inc.; and Megan Tingley Books (collectively “Defendants”)
`Motion for Attorney’s Fees. (Dkt. #23.) Having considered the arguments made in support of this
`Motion, as well as the fact that the Motion is un-opposed, the Court deems this matter appropriate
`for decision without oral argument. See Fed. R. Civ. P. 78; L.R. 7-15. For the following reasons,
`the Court GRANTS Defendants’ Motion for Attorney’s Fees, but reduces the amount requested.
`
`I.
`
`BACKGROUND
`
`On August 19, 2009, Plaintiff Jordan Scott (“Plaintiff”) filed an action against Defendants
`claiming that Meyer’s book, Breaking Dawn, infringed Plaintiff’s copyright of her book, The
`Nocturne. (Dkt. # 1.) In response, Defendants’ counsel drafted a nine page letter to Plaintiff’s
`counsel detailing the applicable legal standards of a copyright infringement action and contending
`that Plaintiff’s claim lacked merit. (McNamara Declaration “Decl.” in Support of Motion “Mtn.,”
`Exhibit “Ex.” H.) Defendants’ counsel urged Plaintiff to drop the case, but received no reply.
`(McNamara Decl. ¶ 11.) Defendants then filed a Motion to Dismiss which this Court granted with
`prejudice on November 24, 2009. (Dkt. #s 15, 20.) This Court found that Plaintiff’s and Meyer’s
`works were not substantially similar, and thus no copyright infringement had occurred. (Id.)
`Pursuant to 17 U.S.C. section 505, Defendants now seek to recover $4,797.57 in costs and
`$83,878.65 in attorney’s fees. (Dkt. # 23.) Plaintiff failed to oppose Defendant’s Motion.1
`
`II.
`
`LEGAL STANDARD
`
`A.
`
`Standard for Recovery of Attorney Fees in Copyright Cases
`
`1 Plaintiff also failed to oppose Defendants’ Motion for Reconsideration of the Court’s prior
`Order denying this Motion as untimely (Dkt. # 27).
`CIVIL MINUTES - GENERAL
`CV-90 (06/04)
`
`Page 1 of 6
`
`

`
`Case 2:09-cv-06076-ODW-RZ Document 31 Filed 06/21/10 Page 2 of 6 Page ID #:796
`
`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
`CIVIL MINUTES - GENERAL
`Case No. CV 09-6076 ODW (RZx)
`Jordan Scott v. Stephenie Meyer, et al.
`Title
`
`Date
`
`June 21, 2010
`
`O
`
`The Copyright Act grants the court discretion to determine a prevailing party’s recovery of
`costs and attorney fees in a copyright case. 17 U.S.C. § 505. When making such a determination,
`the court may consider several nonexclusive factors including “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.” Fogerty v.
`Fantasy Inc., 510 U.S. 517, 535 n.19 (1994) (quoting Lieb v. Topstone Indus., Inc., 788 F.2d 151,
`156 (3d Cir. 1986) (“Lieb factors”)). The court must also consider the degree of success obtained
`by the prevailing party. Jackson v. Axton, 25 F.3d 884, 890 (9th Cir. 1994) overruled on other
`grounds by Fogerty v. Fantasy Inc, 510 U.S. at 531-2 (citing Hensley v. Eckerhart, 461 U.S. 424,
`436 (1983)). While the discretion to award fees and costs does not require an explicit finding of bad
`faith or blameworthiness on behalf of the losing party, any improper motives or “culpability in
`bringing or pursuing the action” may also influence this determination. Fantasy, Inc. V. Fogerty,
`94 F.3d 553, 555-58 (9th Cir. 1996). Finally, when applying the above factors, a court must do so
`while remaining “faithful to the purposes of the Copyright Act” which include not only “[securing]
`a fair return for an ‘author’s creative labor,” but also the “[stimulation of] artistic creativity for the
`general public good.” Fogerty v. Fantasy Inc., 510 U.S. at 526-7 (quoting Twentieth Century Music
`Corp. v. Aiken, 422 U.S. 151, 156 (1975)). If an award of fees would not comport with these
`policies, then fees should not be awarded. Fantasy, Inc. V. Fogerty, 94 F.3d at 558.
`
`B.
`
`Reasonable Fees: Calculating the Lodestar
`
`A reasonable fee award is initially determined by calculating the “lodestar” figure: the
`number of hours reasonably expended multiplied by a reasonable hourly rate. City of Burlington
`v. Dague, 505 U.S. 557, 559 (1992); Hensley v. Eckerhart, 461 U.S. at 433; Gates v. Deukmejian,
`987 F.2d 1392, 1397 (9th Cir. 1992). At the outset, “[t]he fee applicant bears the burden of
`documenting the appropriate hours expended in litigation and must submit evidence in support of
`those hours worked.” Gates v. Deukmejian, 987 F.2d at 1397. “Those hours may be reduced by the
`court where documentation of the hours is inadequate; if the case was overstaffed and hours are
`duplicated; if the hours expended are deemed excessive or otherwise unnecessary.” Chalmers v.
`City of Los Angeles, 796 F.2d 1205, 1210 (9th Cir. 1986), reh’g denied, amended on other grounds,
`808 F.2d 1373 (1987).
`
`The determination of the number of hours reasonably expended is also informed by the
`factors set forth in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974) and
`adopted in Kerr v. Screen Extras Guild, Inc., 526 F.2d 67 (9th Cir. 1975). See Chalmers v. City of
`Los Angeles, 796 F.2d at 1211. The “Johnson-Kerr” factors include (1) the time and labor required,
`(2) the novelty and difficulty of the questions involved, (3) the skill requisite to perform the legal
`service properly, (4) the preclusion of other employment by the attorney due to acceptance of the
`case, (5) the customary fee, (6) whether the fee is fixed or contingent, (7) time limitations imposed
`CIVIL MINUTES - GENERAL
`CV-90 (06/04)
`Page 2 of 6
`
`

`
`Case 2:09-cv-06076-ODW-RZ Document 31 Filed 06/21/10 Page 3 of 6 Page ID #:797
`
`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
`CIVIL MINUTES - GENERAL
`Case No. CV 09-6076 ODW (RZx)
`Jordan Scott v. Stephenie Meyer, et al.
`Title
`
`Date
`
`June 21, 2010
`
`O
`
`by the client or the circumstances, (8) the amount involved 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,
`and those that are irrelevant to the particular case need not be considered. Kerr v. Screen Extras
`Guild, Inc., 526 F.2d 67, 69-70; Hensley v. Eckerhart, 461 U.S. at 363-64. But see Davis v. City and
`County of San Francisco, 976 F.2d 1536, 1546 (9th Cir. 1992), vacated in part as moot by Davis
`v. City and County of San Francisco, 984 F.2d 345 (9th Cir. 1993) (recognizing the irrelevance of
`the sixth Johnson-Kerr factor, and the “doubt[ful] relevance of factor ten).
`
`The lodestar calculation is strongly presumed to yield a reasonable fee. City of Burlington
`v. Dague, 505 U.S. at 562; Gates v. Deukmejian, 987 F.2d at 1397. However, a court may depart
`from the lodestar amount if doing so is “necessary to the determination of a reasonable fee.” City
`of Burlington v. Dague, 505 U.S. at 562 (quotations and citation omitted). If the court determines
`that such departure is necessary, the court must provide a “concise but clear” explanation for the
`reduction. Sorenson v. Mink, 239 F.3d 1140, 1146 (9th Cir. 2001); Van Gerwen v. Guarantee Mut.
`Life Co., 214 F.3d 1041, 1047 (9th Cir. 2000) (quoting Hensley v. Eckerhart, 461 U.S. at 437). The
`Ninth Circuit interprets this language to require “the district court to give at least some indication
`of how it arrived at the amount of compensable hours for which fees were awarded to allow for
`meaningful appellate review.” Gates v. Deukmejian, 987 F.2d at 1398 (quotations omitted).
`Although “an elaborately reasoned, calculated or worded order” is not required, “and a brief
`explanation of how the court arrived at its figures will do, something more than a bald, unsupported
`amount is necessary.”
`
`Once the district court has established the number of hours reasonably expended, the court
`must determine a reasonable hourly rate taking into account “the experience, skill, and reputation
`of the attorney requesting fees.” Chalmers v. City of Los Angeles, 796 F.2d at 1210. In making this
`determination, the district court should look to the rates charged for similar services by comparable
`lawyers in the relevant community. Id. at 1210-11.
`
`III. DISCUSSION
`
`A.
`
`Appropriateness of Attorney’s Fees
`
`Defendants contend their attorney’s fees are recoverable because they (1) achieved complete
`success in defeating Plaintiff’s claims; (2) the claims at issue were objectively unreasonable; (3)
`Plaintiff was motived by an improper purpose in pursuing a meritless infringement claim; and (4)
`awarding fees would support considerations of compensation and deterrence.
`
` An analysis of the Lieb factors counsels in favor of awarding Defendants attorney’s fees.
`CIVIL MINUTES - GENERAL
`CV-90 (06/04)
`Page 3 of 6
`
`

`
`Case 2:09-cv-06076-ODW-RZ Document 31 Filed 06/21/10 Page 4 of 6 Page ID #:798
`
`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
`CIVIL MINUTES - GENERAL
`Case No. CV 09-6076 ODW (RZx)
`Jordan Scott v. Stephenie Meyer, et al.
`Title
`
`Date
`
`June 21, 2010
`
`O
`
`Defendants argue that Plaintiff’s claims were objectively unreasonable because she failed to
`withdraw them even after Defendants notified Plaintiff, in a nine page letter, that she did not have
`sufficient evidentiary basis to maintain her claims and that they would fail under the applicable legal
`standard. (Mtn. at 11; McNamara Decl., Ex. H.) As it so happens, this matter was dismissed with
`prejudice on exactly those grounds. Because the maintenance of copyright claims for protracted
`period of time without evidentiary support has in the past been held objectively unreasonable
`(Entm’t Research Group, Inc. v. Genesis Creative Group, Inc., 122 F.3d 1211, 1229 (9th Cir.
`1997)), it seems only appropriate that the Court view Plaintiff’s claims as such as well.
`
`While a finding of improper purpose or bad faith is not required to award attorney’s fees,
`it may nevertheless be considered at the court’s discretion. Fantasy, Inc. V. Fogerty, 94 F.3d at
`555-58. Defendants call the Court’s attention to the interesting facts that Meyer’s disputed book
`(and the books preceding it) have been made into major motion pictures, that Plaintiff’s complaint
`was filed shortly before the scheduled release of one of the films, and that the “dispute” surrounding
`Defendants’ alleged infringement was publicized at that point in time. (See Mtn. at 13.) Although
`these facts are not dispositive of Plaintiff's bad faith in pursuing her action, when considered under
`the backdrop of the objective unreasonableness of the claims and the additional fact that the current
`Motion goes unopposed, the connotations of frivolity are difficult to escape. By the same token, the
`awarding of fees in this case would serve goals of deterrence and compensation. Deterring non-
`meritorious lawsuits against defendants seen as having “deep pockets” and compensating parties that
`must defend themselves against meritless claims are both laudible ends. In this case, Defendants
`were forced to defend against Plaintiff’s claims even after pointing out the fatal flaws from which
`her lawsuit suffered.
`
`Finally, an award of attorney’s fees in this case is consistent with the ultimate purposes of
`the Copyright Act, and therefore appropriate. The successful defense against Plaintiff’s copyright
`infringement claims will assure that Meyer’s literary work remains available to the public, thus
`furthering the goal of “stimulat[ing] artistic creativity for the general public good” and perhaps “lead
`to further creative pieces.” See Fantasy, Inc. v. Fogerty 94 F.3d at 559. Accordingly, the Court is
`of the opinion that an award of attorney’s fees to Defendants in this case is warranted.
`
`B.
`
`Reasonableness of Defendants' Attorneys' Fees: Calculating the Lodestar
`
`Taking into account the Johnson-Kerr factors, the Court questions whether a reasonable
`amount of time was spent defending against Plaintiff’s claims. Defendants’ attorneys billed
`between $26,000 and $32,000 per month for three and a half months, with the exception of their
`December 2009 bill for $4,034.35. (McNamara Decl., Ex. J.) Defendants’ total attorney’s fees
`incurred in securing the dismissal of Plaintiff’s case with prejudice amount to $88, 676.22. (Mtn.
`at 19.)
`CV-90 (06/04)
`
`CIVIL MINUTES - GENERAL
`
`Page 4 of 6
`
`

`
`Case 2:09-cv-06076-ODW-RZ Document 31 Filed 06/21/10 Page 5 of 6 Page ID #:799
`
`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
`CIVIL MINUTES - GENERAL
`Case No. CV 09-6076 ODW (RZx)
`Jordan Scott v. Stephenie Meyer, et al.
`Title
`
`Date
`
`June 21, 2010
`
`O
`
`While Defendants’ counsel no doubt expended substantial time in their relatively brief but
`highly successful litigation of this case, some of the hours billed appear unnecessary or excessive.
`The Court is particularly concerned about the amount of time that went into the researching and
`drafting of the nine page letter to Plaintiff’s counsel detailing the shortcomings of Plaintiff’s
`infringement claim and the work performed on the Motion to Dismiss. From September 14-18, C.
`Robinson spent 36.3 hours researching and drafting a brief; presumably the Motion to Dismiss.
`(McNamara Decl., Ex. J.) However, the nine page letter that was sent to Plaintiff’s counsel had
`already set out the applicable legal standard and applied Plaintiff’s purported facts, ultimately urging
`that Plaintiff drop her complaint. (McNamara Decl., Ex. H.) The hours spent drafting the Motion
`to Dismiss thus appear partially duplicative. Accordingly, the Court reduces the hours claimed by
`Defendants’ counsel on this task by half (or 18.15 hours).
`
`Another subject of potential excess is the work performed by E McNamara and C. Robinson
`in relation to a book entitled Forever Dawn, including reviewing and drafting correspondence
`regarding a “request for copyright filing,” telephone conversations regarding electronic versions,
`comparisons between that book and Plaintiff’s, and reviewing issues regarding a protective order
`for that book. (McNamara Decl., Ex. J.) Forever Dawn appears to be another unreleased Meyers
`work. However, nowhere in the Complaint does Plaintiff allege that Forever Dawn infringes
`Plaintiff’s copyright. (See Dkt. # 1.) As a result, fees incurred for hours spent performing work
`related to that book are not appropriate for the award in this case. Because Defendants’ counsels
`accounting for time spent performing these tasks is combined with time spent on tasks appropriately
`related to this case, the Court simply reduces the hours each of these individuals may claim by two.
`
`Finally, the rates charged by Defendants’ counsel do not seem unreasonable in light of each
`individual’s relevant experience, reputation and skill compared to the rates charged by comparable
`lawyers and paralegals in the Los Angeles area, especially given counsels’ prior negotiation of a ten
`percent discount with Defendants.2 (McNamara Decl., Ex’s. K-N.) Taking into account the
`foregoing considerations, the amount of attorney’s fees requested shall be reduced by $8,579
`($6,779.03 for half of C. Robinson’s time drafting the Motion to Dismiss at $373.50 per hour, $747
`for two hours of C. Robinson’s time working on Forever Dawn at $373.50 per hour, and $1,053
`for two hours of E. McNamara’s time working on Forever Dawn at $526.50 per hour).
`
`IV. CONCLUSION
`
`For the foregoing reasons, Defendants’ Motion for Attorney Fees is GRANTED, but the
`
`2 Defendants’ counsel therefore charged $526.50 per hour of E. McNamara’s time and $373.50
`per hour of C. Robinson’s time. (McNamara Decl. ¶¶ 18, 20.)
`CIVIL MINUTES - GENERAL
`CV-90 (06/04)
`
`Page 5 of 6
`
`

`
`Case 2:09-cv-06076-ODW-RZ Document 31 Filed 06/21/10 Page 6 of 6 Page ID #:800
`
`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
`CIVIL MINUTES - GENERAL
`Case No. CV 09-6076 ODW (RZx)
`Jordan Scott v. Stephenie Meyer, et al.
`Title
`
`Date
`
`June 21, 2010
`
`O
`
`amount requested shall be modified to reflect a reduction in the number of hours billed.
`Accordingly, Defendants’ shall recover costs and attorney’s fees in the amount of $80,097.19,
`inclusive of $4,797.50 in costs.
`
`IT IS SO ORDERED.
`
`Initials of Preparer RGN
`
`:
`
`00
`
`CV-90 (06/04)
`
`CIVIL MINUTES - GENERAL
`
`Page 6 of 6