Case 2:20-cv-04443-ODW-PVC Document 73 Filed 04/20/21 Page 1 of 7 Page ID #:941
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`O
`
`
`
`United States District Court
`Central District of California
`
`
`STEPHEN CUMMINGS,
`
`
`
`
`Plaintiff,
`
`
`v.
`
`DOLBY LABORATORIES, INC., et al.,
`
`
`
`
`Defendants.
`
`
`Case No. 2:20-cv-04443-ODW (PVCx)
`
`ORDER GRANTING
`DEFENDANTS’ MOTION FOR
`ATTORNEYS’ FEES AND COSTS
`[71]
`
`I.
`INTRODUCTION
`Pro se Plaintiff Stephen Cummings initiated this copyright action based on his
`
`fanciful claim that Defendants1 adapted the 1997 motion picture Titanic from his life
`story. (See Notice of Removal, Ex. A (“Complaint” or “Compl.”), ECF No. 1-1.) The
`Court granted Defendants’ motion to dismiss and invited a motion for attorneys’ fees
`and costs. (Order Granting Mots. to Dismiss 8–9, ECF No. 69.) Defendants now
`request $20,534.65 in attorneys’ fees and costs. (Mot. for Att’ys’ Fees (“Mot.”), ECF
`No. 71.) For the reasons discussed below, the Court GRANTS Defendants’ Motion.2
`
`
`1 Defendants are James Cameron; Lightstorm Entertainment, Inc.; Paramount Pictures Corp.;
`Paramount Home Entertainment, Inc.; and Twentieth Century Fox Film Corp.
`2 Having carefully considered the papers filed in connection with the Motion, the Court deemed the
`matter appropriate for decision without oral argument. Fed. R. Civ. P. 78; C.D. Cal. L.R. 7-15.
`
`1 2 3 4 5 6 7 8 9
`1 2 3 4 5 6 7 8 9
`
`
`1010
`
`1111
`
`1212
`
`1313
`
`1414
`
`1515
`
`1616
`
`1717
`
`1818
`
`1919
`
`2020
`
`2121
`
`2222
`
`2323
`
`2424
`
`2525
`
`2626
`
`2727
`
`2828
`
`

`

`Case 2:20-cv-04443-ODW-PVC Document 73 Filed 04/20/21 Page 2 of 7 Page ID #:942
`
`
`
`II. BACKGROUND
`The Court has detailed the facts underlying this action in a prior Order and
`
`hereby incorporates that discussion by reference. (See Order Granting Mots. to
`Dismiss.) This lawsuit was Cummings’s third attempt to recover from Defendants
`based on his claim that the character “Jack Dawson” from the film Titanic was based
`on his life story. (Id. at 2.) On May 19, 2017, Cummings first filed this lawsuit in the
`Middle District of Florida. (See id.) That case was dismissed because Cummings
`failed to comply with the local rules. (Id.) On November 2, 2017, Cummings filed a
`second lawsuit based on the same allegations that Titanic was based on his life story
`and that case was dismissed with prejudice. (Id.)
`
`On January 7, 2020, Cummings initiated this action based on those same
`meritless claims. (See Compl.) Thus, on September 14, 2020, the Court granted
`Defendants’ motion to dismiss Cummings’s duplicative claims based on res judicata.
`(Order Granting Mots. to Dismiss 5–8.) As this case was premised on identical facts
`and circumstances as Cummings’s two prior frivolous cases, the Court determined
`that “an award of attorney’s fees is justified to compensate the Defendants and should
`deter Cummings,” and invited Defendants to file a motion for fees and costs. (Id.
`at 9–10.) Pursuant to the Court’s Order, Defendants now request $19,980 in
`attorneys’ fees and $554.65 in costs, for a total of $20,534.65. (Mot.) Defendants’
`Motion is unopposed.
`
`III. LEGAL STANDARD
`The Copyright Act grants courts discretion to award reasonable attorneys’ fees
`
`and costs to the prevailing party in a copyright case. 17 U.S.C. § 505. District courts
`consider the following factors: “(1) the degree of success obtained; (2) frivolousness;
`(3) motivation; (4) the objective unreasonableness of the losing party’s factual and
`legal arguments; and (5) the need,
`in particular circumstances,
`to advance
`considerations of compensation and deterrence.” Love v. Associated Newspapers,
`Ltd., 611 F.3d 601, 614 (9th Cir. 2010). These factors “are not exclusive and need not
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
` 2
`
`
`
`

`

`Case 2:20-cv-04443-ODW-PVC Document 73 Filed 04/20/21 Page 3 of 7 Page ID #:943
`
`
`
`all be met.” Fantasy, Inc. v. Fogerty, 94 F.3d 553, 558 (9th Cir. 1996). Once the
`court determines a party is a “prevailing party” under § 505, it must consider whether
`the requested fees and costs are reasonable. 17 U.S.C. § 505; see Accredability, LLC
`v. Accreditsoft, No. CV 18-5969-DMG (FFMx), 2019 WL 4137409, at *4 (C.D. Cal.
`May 10, 2019).
`
`IV. DISCUSSION
`The Court previously determined that Defendants are the prevailing party and
`entitled to attorneys’ fees based on the frivolous nature of this case and to deter
`Cummings from filing further meritless lawsuits. (Order Granting Mots. to
`Dismiss 8–9.) Accordingly, the Court focuses its inquiry on whether Defendants’
`request for $20,534.65 ($19,980 in attorneys’ fees and $554.65 in costs) is reasonable.
`A. Reasonable Attorneys’ Fees and Costs
`
`To calculate the fee award, the Court determines “the number of hours
`reasonably expended on the litigation” and multiplies that number “by a reasonable
`hourly rate.” Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). Defendants seek
`attorneys’ fees based on the following rates and reported hours:
`
`Attorney
`Michael R. Kreiner $600
`Mark D. Litvack
`$600
`TOTAL
`
`
`Rate
`
`Hours
`
`27.8
`5.5
`33.3
`
`Amount
`$16,680
`$3,300
`$19,980
`
`(See Declaration of Mark D. Litvack (“Litvack Decl.”), Ex. A, ECF No. 71-2.)
`
`
`1.
`Reasonable Hourly Rate
`
`Defendants request $600 per hour for their attorneys Mark D. Litvack and
`Michael R. Kreiner. (Mot. 1–3.) They claim $600 per hour is a reasonable blended
`rate that “reflects a discount of 49% on the standard rate of [Litvack], and 11.6% on
`the standard rate of [Kreiner].” (Mot. 2 (citing Litvack Decl. ¶ 6).)
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
` 3
`
`
`
`

`

`Case 2:20-cv-04443-ODW-PVC Document 73 Filed 04/20/21 Page 4 of 7 Page ID #:944
`
`
`
`
`To determine whether hourly rates are reasonable, courts consider “the rates
`prevailing in that district for similar services by lawyers of reasonably comparable
`skill, experience, and reputation.” Perfect 10, Inc. v. Giganews, Inc., No. CV 11-
`07098-AB (SHx), 2015 WL 1746484, at *5 (C.D. Cal. Mar. 24, 2015) (quoting Prison
`Legal News v. Schwarzenegger, 608 F.3d 446, 455 (9th Cir. 2010)), aff’d, 847 F.3d
`657 (9th Cir. 2017). “Unless counsel is working outside of his or her normal area of
`practice, evidence that a billing rate was the usual rate the attorney charges for his or
`her services is evidence that the rate is comparable to the market rate.” Id. (internal
`quotation marks omitted); see Kourtis v. Cameron, 358 F. App’x 863, 868 (9th Cir.
`2009) (“The district court’s calculation of an attorney’s fee award . . . based on the
`actual rates charged by [prevailing party’s] attorneys was reasonable under 17 U.S.C.
`§ 505.”). Typically, “[i]n Los Angeles, partners have an hourly rate ranging from
`$450 to $955, and associates from $382 to $721.” Vasquez v. Packaging Corp. of
`Am., No. CV 19-1935-PSG (PLAx), 2020 WL 6785650, at *10 (C.D. Cal. Aug. 17,
`2020) (citing 2018 Real Rate Report: The Industry’s Leading Analysis of Law Firm
`Rates, Trends, and Practices).
`
`Litvack earned his law degree from Northwestern University School of Law
`and has over thirty-seven years of legal experience. (Litvack Decl. ¶ 3.) Litvack is a
`partner in the Los Angeles office of the law firm Pillsbury Winthrop Shaw Pittman
`LLP (“Pillsbury”) and focuses his practice on civil litigation. (Id.) Litvack’s standard
`billing rate is $1,185 per hour. (Id. ¶ 6.) Kreiner earned his law degree from Loyola
`Law School and has four years of legal experience. (See id. ¶ 4.) Kreiner is an
`associate in the Los Angeles office of Pillsbury and also focuses his practice on civil
`litigation. (Id.) Kreiner’s standard billing rate is $670 per hour. (Id. ¶ 6.)
`
`In the Motion, Defendants explain that they agreed upon a blended rate of $600
`per hour for all attorney work performed in this matter. (Mot. 2.) Relevantly,
`Defendants’ requested rate of $600 per hour for Litvack and Kreiner’s work is
`significantly lower than both of their usual rates, (Litvack Decl. ¶ 6), and well within
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
` 4
`
`
`
`

`

`Case 2:20-cv-04443-ODW-PVC Document 73 Filed 04/20/21 Page 5 of 7 Page ID #:945
`
`
`
`the range of what other partners and associates that service corporate clients charge in
`this district, see Vasquez, 2020 WL 6785650. Accordingly, the Court finds that
`Defendants have carried their burden to demonstrate that their requested rates are
`aligned with those prevailing in the community for civil litigators in Southern
`California. For the foregoing reasons, the Court concludes that the blended rate of
`$600 per hour for Litvack and Kreiner is reasonable, and Defendants shall be entitled
`to recover for their attorneys’ time at that rate.
`
`
`2.
`Reasonable Number of Hours Expended
`
`Defendants seek to recover for the 33.3 hours their attorneys expended
`litigating this matter (e.g., moving to dismiss this action on res judicata grounds and
`moving for attorneys’ fees). (Mot. 2.)
`
`“The fee applicant bears the burden of documenting the appropriate hours
`expended in the litigation and must submit evidence in support of those hours
`worked.” Gates v. Deukmejian, 987 F.2d 1392, 1397 (9th Cir. 1992). “By and large,
`the court should defer to the winning lawyer’s professional judgment as to how much
`time he was required to spend on the case; after all, he won, and might not have, had
`he been more of a slacker.” Moreno v. City of Sacramento, 534 F.3d 1106, 1115
`(9th Cir. 2008).
`
`In support of the Motion, Defendants submit a table outlining the tasks and
`hours their attorneys billed for work on this case. (Litvack Decl., Ex. A.) After
`reviewing the evidence, the Court finds that Defendants have adequately supported
`their requested hours. Kreiner, the associate on this matter, performed the majority of
`the work and seeks fees for the 27.8 hours he expended on tasks that appear necessary
`to quickly resolve this duplicative case. (See id.) Litvack, the supervising partner,
`expended only 6.6 hours finalizing motions, discussing issues with clients, and
`preparing for hearings. (See id.) Accordingly, the Court finds that Defendants’
`attorneys may recover for the 33.3 hours they reasonably expended litigating this
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
` 5
`
`
`
`

`

`Case 2:20-cv-04443-ODW-PVC Document 73 Filed 04/20/21 Page 6 of 7 Page ID #:946
`
`
`
`action. See Moreno, 534 F.3d at 1115 (explaining that the district court should defer
`to the winning lawyers’ professional judgment).
`B. Costs
`
`Defendants request $554.65 in costs and provide a table summarizing those
`costs as follows:
`
`Costs
`Filing Fee for Removal
`FedEx Expenses
`Online Research Expenses
`TOTAL
`
`Amount
`
`$400.00
`$25.65
`$129.00
`$554.65
`
`(Mot. 3 (citing Litvack Decl., Ex. A).)
`
`The Copyright Act authorizes the court to award “full costs” to a party in
`copyright litigation. Rimini Street, Inc. v. Oracle USA, Inc., 139 S. Ct. 873 (2019).
`“That term means the costs specified in the general costs statute, [28 U.S.C. §§ 1821,
`1920].” Id.
`
`Here, the Court finds that Defendants’ request for $400 for filing fees is
`appropriate. See 28 U.S.C. § 1920. However, Defendants rely on an outdated case to
`support their request for FedEx and online research expenses. (See Mot. 3 (citing
`Urban Textile Inc. v. Specialty Retailers, Inc., No. 2:15-cv-03456-ODW, 2017 WL
`5983761, at *5 (June 15, 2017) (granting costs for online legal research expenses,
`messenger, courier, and overnight mail expenses). After Urban Textile was decided
`by this Court, the Supreme Court clarified that even in a Copyright Act case,
`recoverable costs are limited to only those specified in the general costs statute. See
`Rimini Street, 139 S. Ct. at 881 (citing 28 U.S.C. § 1920). In light of Rimini Street’s
`holding and Defendants’ failure to cite to any persuasive authority, Defendants cannot
`recover the $154.65 they seek for FedEx and online research costs. Thus, in total,
`Defendants may recover costs in the amount of $400.
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
` 6
`
`
`
`

`

`Case 2:20-cv-04443-ODW-PVC Document 73 Filed 04/20/21 Page 7 of 7 Page ID #:947
`
`
`
`V. CONCLUSION
`For the reasons discussed above, the GRANTS Defendants’ Motion (ECF
`No. 71.) The Court awards Defendants attorneys’ fees in the amount of $19,980 and
`litigation costs in the amount of $400, for a total award of $20,380.
`
`IT IS SO ORDERED.
`
`April 20, 2021
`
`
`
`
`
`
`
`
`
`
`
`
`
` ____________________________________
` OTIS D. WRIGHT, II
`
` UNITED STATES DISTRICT JUDGE
`
`
`
` 7
`
`
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`
`
`