Case 2:15-cv-02739-ODW-E Document 35 Filed 10/27/15 Page 1 of 10 Page ID #:439
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`United States District Court
`Central District of California
`
`
`Case No. 2:15-cv-02739-ODW-E
`
`ORDER GRANTING ATTORNEY’S
`FEES AND COSTS PURSUANT TO
`17 U.S.C. § 505 [29]
`
`
`
`
`PETER GALLAGHER,
`
`
`
`Plaintiff,
`
`v.
`LIONS GATE ENTERTAINMENT INC.,
`LIONS GATE FILMS INC., MUTANT
`ENEMY, INC., JOSEPH “JOSS”
`WHEDON, ANDREW GODDARD, and
`DOES 1–50, inclusive,
`
`
`
`Defendants.
`
`
`I. INTRODUCTION
`Plaintiff Peter Gallagher (“Plaintiff” or “Gallagher”)1 brought suit against
`Defendants Lions Gate Entertainment Inc., Lions Gate Films Inc., Mutant Enemy,
`Inc., Joseph “Joss” Whedon, Andrew Goddard, and Does 1 through 50 (collectively
`“Defendants”) for copyright infringement of his book The Little White Trip: A Night
`in the Pines (“Trip”) by Defendants and their film, The Cabin in the Woods (“Cabin”).
`
`1 After filing this lawsuit, Plaintiff married and legally changed his name from “Gallagher” to “Green.” (Gallagher Decl.
`1.) For purposes of this order, the Court will continue to refer to Plaintiff by his prior surname, as listed on the case
`caption.
`
`

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`Case 2:15-cv-02739-ODW-E Document 35 Filed 10/27/15 Page 2 of 10 Page ID #:440
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`(ECF No. 15, First Amended Complaint (“FAC”).) On September 11, 2015, this
`Court granted Defendants’ Motion to Dismiss all of Plaintiff’s claims. (ECF No. 27.)
`As the prevailing party, Defendants now move for attorney’s fees under Section 505
`of the Copyright Act. 17 U.S.C. § 505. For the reasons set forth below, Defendants’
`Motion for Attorney’s Fees and Costs is GRANTED.
`I.
`BACKGROUND
`A. Factual History
`Gallagher is the author and owner of all exclusive rights under copyright of the
`literary work Trip. (ECF No. 15, FAC ¶ 12.) Gallagher developed the idea for Trip
`and drafted an outline of that idea in 2004; he then completed the initial draft between
`late 2004 and early 2005. (Id. ¶¶ 13–14.) Trip was published in or about June 2006,
`with 2,500 copies of the book printed for sale. (Id. ¶ 17.) Gallagher then began
`selling copies of Trip on the Venice Beach Boardwalk, the Santa Monica Third Street
`Promenade, and outside the Chinese Theatre on the Hollywood Walk of Fame. (Id. ¶
`18.) Over the course of one and a half years, Gallagher sold approximately 5,000
`copies of the book, primarily in the Santa Monica and Venice Beach areas. (Id. ¶ 25.)
`Defendants are the writers, producers, and distributors of the movie Cabin,
`which was released in 2012. (Id. ¶¶ 4–8.) All Defendants other than Andrew
`Goddard and Mutant Enemy, Inc. reside or operate out of Santa Monica, with the
`other two Defendants listed as residing or operating out of Los Angeles County. (Id.)
`Gallagher alleged that Cabin copied extensively from Trip in addition to having
`access and thereon bases his allegations of copyright infringement. (Id. ¶ 29.)
`B. Procedural History
`Gallagher first contacted Defendants on January 7, 2014, after being “stricken”
`by what he perceived to be similarities between Cabin and his own creative work.
`(Green2 Decl., ¶ 6; Kim Decl., Ex 1 10.) Plaintiff claims Defendant Lions Gate sent a
`reply letter dated January 21, 2014, informing Gallagher that Lions Gate would
`
`
`2 Peter Green and Peter Gallagher are one and the same. See supra note 1.
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`Case 2:15-cv-02739-ODW-E Document 35 Filed 10/27/15 Page 3 of 10 Page ID #:441
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`investigate his claims.3 (Green Decl. ¶ 7.) On February 11, 2014, Plaintiff responded
`by outlining how he conceived of the idea for Trip, explaining the book’s availability,
`and implicitly demanded seven million dollars in damages. (Kim Decl., Ex. 1 14–15;
`Ex. 2.) Defendants responded through outside counsel on March 31, 2014, charting
`the reasons why Gallagher could not meet the accessibility and substantial similarity
`requirements under the Copyright Act. (Kim Decl. Ex. 3 18–19.) In closing,
`Defendants made clear that, should Gallagher proceed with his claims and file suit,
`Defendants would seek attorney’s fees and costs as provided by the Copyright Act.
`(Id. at 19.) Gallagher made no attempt to communicate with Defendants for over a
`year; Gallagher then filed his Complaint in this Court on April 13, 2015. (ECF No.
`1.) Gallagher failed to serve the Complaint. (Mot. 2.)
`
`On May 1, 2015, Defendants provided Plaintiff’s Counsel with a detailed,
`eleven-page document outlining the controlling case law governing Copyright Act
`claims in this District and explained that Plaintiff’s claims could not meet the
`accessibility and substantial similarity requirements of the Act. (Kim Decl. Ex. 4 20–
`30.) Again, Defendants urged Plaintiff to withdraw his Complaint, or Defendant
`would seek attorney’s fees and costs. (Id. at 28–29.) Counsel for both parties spent
`the next several weeks trading phone calls and emails in accordance with the Court’s
`meet-and-confer requirements under Local Rule 7.3. (Kim Decl., Ex. 5.) With
`Plaintiff still refusing to withdraw his Complaint, Defendants moved to dismiss all of
`Plaintiff’s claims under Federal Rule of Civil Procedure 12(b)(6). (ECF No. 11.) The
`next day, Plaintiff filed a First Amended Complaint. (ECF No. 15.) Defendants then
`moved to dismiss the FAC in its entirety. (ECF No. 18.)
`
`After assessing the briefing from both parties on the 12(b)(6) motion, the Court
`granted Defendant’s motion, finding no substantial similarity. (ECF No. 27, Order.)
`Defendants now move for attorney’s fees and costs, pursuant to Section 505 of the
`Copyright Act. 17 U.S.C. § 505.
`
`
`3 Neither party has included a copy of this letter, though Plaintiff references it in his opposition papers and declaration.
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`Case 2:15-cv-02739-ODW-E Document 35 Filed 10/27/15 Page 4 of 10 Page ID #:442
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`II. LEGAL STANDARD
`A. Standard for Recovery of Attorney Fees in Copyright Cases
`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) (the “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, 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, 510 U.S. at 526–27 (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., 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, 461 U.S. at
`433; Gates v. Deukmejian, 987 F.2d 1392, 1397 (9th Cir. 1992). At the outset, “[t]he
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`Case 2:15-cv-02739-ODW-E Document 35 Filed 10/27/15 Page 5 of 10 Page ID #:443
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`fee applicant bears the burden of documenting the appropriate hours expended in
`litigation and must submit evidence in support of those hours worked.” Gates, 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, 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 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, though those that are irrelevant to the particular case need not be
`considered. Kerr, 526 F.2d at 69–70; Hensley, 461 U.S. at 363–64; but see Davis v.
`City and Cnty. of San Francisco, 976 F.2d 1536, 1546 (9th Cir. 1992), vacated in part
`as moot by Davis v. City and Cnty. 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, 505 U.S. at 562; Gates, 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, 505 U.S. at 562 (quotations and citation omitted). If the
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`Case 2:15-cv-02739-ODW-E Document 35 Filed 10/27/15 Page 6 of 10 Page ID #:444
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`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, 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, 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.” Chalmers, 796 F.2d at 1211 n.3.
`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.” Id. 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) were
`the prevailing party in this action and successfully defeated all of Plaintiff's claims; (2)
`the claims at issue were frivolous and 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 in
`furtherance of the Copyright Act. (ECF No. 29, Motion for Attorney’s Fees (“Mot.”)
`1.) A careful analysis of the Lieb factors counsels in favor of awarding Defendants
`attorney’s fees.
`As an initial matter, the Court notes that Defendants were the prevailing party at
`the Motion to Dismiss stage, and that all of Plaintiff’s copyright claims were
`dismissed with prejudice. (ECF No. 27, Order.) While not dispositive, Defendants’
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`Case 2:15-cv-02739-ODW-E Document 35 Filed 10/27/15 Page 7 of 10 Page ID #:445
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`ability to completely combat Plaintiff’s claims is a key component in the attorney’s
`fee calculation. See Jackson, 25 F.3d at 890.
`Defendants argue that Plaintiff’s claims were objectively unreasonable because
`his copyright claims were manifestly without support, and that Plaintiff could not
`meet a single factor under the Act’s substantial similarity test. (Mot. 6.) The Court
`agrees; the September 11, 2015 Order granting Defendant’s Motion to Dismiss clearly
`outlines the myriad ways that Plaintiff’s Little White Trip has no substantial similarity
`to Defendants’ Cabin in the Woods. (ECF No. 27, Order.) Where a court finds two
`works to be so dissimilar that “‘no reasonable juror’ could conclude that there was
`substantial similarity on any of the eight elements of the extrinsic test,” a Plaintiff
`“should have known that her claim was objectively unreasonable” and a fee award is
`appropriate. Bernal v. Paradigm Talent and Literary Agency, 2010 WL 6397561 No.
`CV 07-06445 SVW, *3 (C.D. Cal. June 1, 2010).
` The Court also finds that Plaintiff’s claim is factually unreasonable. See
`Fogerty, 510 U.S. at 534 n.19 (“objective unreasonableness” can be based on the legal
`basis for a case and/or the facts underlying the claim itself). Just as this Court held in
`Scott v. Meyer, 2010 WL 2569286 No. CV 09-6076 (ODW) (June 21, 2010 C.D. Cal.)
`(J. Wright), the “maintenance of copyright claims for a protracted period of time
`without evidentiary support has in the past been held objectively unreasonable.” Id. at
`*3 (citing Entm't Research Group, Inc. v. Genesis Creative Group, Inc., 122 F.3d
`1211, 1229 (9th Cir. 1997). Even after Defendants provided Plaintiff with a detailed,
`eleven-page letter outlining Ninth Circuit copyright law and the failings of Plaintiff’s
`arguments, Plaintiff still doggedly pursued his claims. (See Kim Decl., Ex. 4.) As in
`Scott, the Court finds such manifest intent to continue a claim in the face of
`overwhelming conflicting case law objectively unreasonable.
`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., 94 F.3d at 555–58. Defendants call the Court's attention to the fact that
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`Case 2:15-cv-02739-ODW-E Document 35 Filed 10/27/15 Page 8 of 10 Page ID #:446
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`Plaintiff’s conduct has caused unnecessary delay and duplicative work. (Mot. 9.)
`After Plaintiff received a letter from Defendants in March 2014 outlining the flaws in
`his copyright claim, Plaintiff was silent for over a year before filing his Complaint.
`(ECF No. 1.) His counsel, in turn, failed to inform Defendants’ counsel during weeks
`of meet-and-confer conversations that Plaintiff intended to file an Amended
`Complaint—even after Defendants reiterated their intentions to move for dismissal.
`(Id. 3; Kim Decl. Ex. 5 33.) Just one day after Defendant filed their 12(b)(6) motion,
`Plaintiff filed his Amended Complaint, thereby creating duplicative work and causing
`avoidable delay. (ECF Nos. 11, 14.) Plaintiff’s failure to be forthright during the
`meet-and-confer stage leads the Court to believe that Plaintiff hoped to delay the
`proceedings and create unnecessarily duplicative work without cause, and therefore
`the Court finds that Plaintiff acted with improper purpose during this litigation.
`Finally, the Court finds that an award of attorney’s fees and costs would
`advance the aims and purposes of the Copyright Act. While the Court is sympathetic
`to Plaintiff’s argument that the purpose of the Copyright Act cannot be to penalize
`those with sincere beliefs but without financial resources (ECF No. 30, Opposition to
`Motion to Attorney’s Fees (“Opp.”) 9.), sincerity alone cannot force an artist to bear
`the costs of expensive and meritless litigation. If Plaintiff had accepted that his
`sincere beliefs did not comport with Ninth Circuit case law or had not unnecessarily
`delayed these proceedings, then attorney’s fees would not be awarded. However, the
`aims of the Act are served by awarding fees in the case at bar; the successful defense
`against Plaintiff's copyright infringement claims will assure that Mr. Whedon’s
`cinematic 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., 94 F.3d at 559. Accordingly, the Court
`holds that an award of attorney’s fees to Defendants in this case is warranted.
`B. Reasonableness of Defendants’ Attorneys’ Fees
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`Case 2:15-cv-02739-ODW-E Document 35 Filed 10/27/15 Page 9 of 10 Page ID #:447
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`Taking into account the Johnson-Kerr factors, the Court questions whether a
`reasonable amount of time was spent defending against Plaintiff's claims. However,
`because Defendants requested a drastically reduced rate fee for their services, the
`Court finds that any unreasonable expenditures of time and resources are ultimately
`harmless. Therefore, the Court awards Defendants attorney’s fees in the amount of
`$45,269.32 and costs in the amount of $2,021.06.
`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 the Motion to Dismiss after
`first expending approximately 50 hours researching and preparing an eleven-page
`letter to Plaintiff’s counsel detailing the shortcomings of Plaintiff’s infringement
`claim, while simultaneously working on the potential Motion to Dismiss brief. (See
`Kim Decl., Ex. 7.) Defendants ask for compensation for an additional 72 hours of
`work between the completion of the eleven-page letter and the filing of the May 18,
`2015 Motion to Dismiss. The Court, however, does not see how it is “reasonable” to
`have two partners and two associates researching and writing a brief for such a length
`of time, especially when the meat of the legal arguments are in the eleven-page
`document. This letter had already set out the applicable legal standard and applied
`Plaintiff’s purported facts. (Kim Decl., Ex 4.) The hours spent drafting the Motion to
`Dismiss thus appear partially duplicative.
`Furthermore, Defendants’ counsel spent an additional thirty-plus hours drafting
`a second Motion to Dismiss after Plaintiff filed an Amended Complaint. (Kim Decl.,
`Ex. 7.) Such exertions seem unnecessary when Defendants describe the First
`Amended Complaint as containing only a few new and “inconsequential” allegations.
`(Mot. 3–4.) If the FAC was, indeed, repetitive of the first Complaint, notwithstanding
`a few new trivialities, then over thirty hours of legal work, with two partners and an
`associate, is wholly unnecessary.
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`Case 2:15-cv-02739-ODW-E Document 35 Filed 10/27/15 Page 10 of 10 Page ID #:448
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`However, even with Defendants’ duplicative and unreasonable hours, the Court
`awards Defendants’ requested fees and costs in light of counsel’s drastically reduced
`rates. Given each individual attorney’s relevant experience, reputation, and skill
`compared to the rates charged by comparable lawyers and paralegals in the Los
`Angeles area, the Court finds Defense Counsel’s billing rates to be reasonable—but
`also approves of Defendant’s choice to ask for less than half of the market cost for
`their services. If Defendants billed for the total number of hours worked at their going
`rates, the bill would total $86,701.29. However, Defendants have adjusted their
`requested amount and seek only $45,269.32 in fees. (Mot. 14.) Defendants also do
`not seek remuneration for the 102 hours spent reviewing Plaintiff’s opposition papers,
`drafting a reply, or preparing for a potential hearing on the Motion to Dismiss, which
`would have added an additional $56,700 at Defendants’ reduced rate. (Id. 16.)
`time
`Therefore,
`the Court finds
`the unreasonableness of Defendant’s
`management to be harmless, as the total fee requested has been drastically reduced;
`Defendants have chosen not to seek compensation for all tasks completed; and the
`requested $45,269.32 is reasonable in light of the skills and expertise of Defense
`Counsel and the work necessary in this litigation.
`IV. CONCLUSION
`For the foregoing reasons, Defendants’ Motion for Attorney’s Fees (ECF No.
`29) is GRANTED, and accordingly shall recover cost and fees in the amount of
`$47,290.38, inclusive of $2,021.06 in costs.
`
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`IT IS SO ORDERED.
`October 27, 2015
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` ____________________________________
` OTIS D. WRIGHT, II
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` UNITED STATES DISTRICT JUDGE
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