`
`
`
`Plaintiff,
`
`-against-
`
`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
`-------------------------------------------------------------
`X
`:
`ROBERT G. LOPEZ,
`:
`
`:
`:
`:
`:
`:
`:
`:
`X
`
`
`FASHION NOVA, et al.,
`
`
`Defendants.
`------------------------------------------------------------
`
`
`LORNA G. SCHOFIELD, District Judge:
`
`
`
`
`
`
`
`
`
`
`
`
`
`20 Civ. 9238 (LGS)
`
`ORDER
`
`WHEREAS, Plaintiff Robert G. Lopez commenced this copyright infringement action on
`
`November 4, 2020, against seven named Defendants.
`
`WHEREAS, Plaintiff never served three of the Defendants, and they were eventually
`
`dismissed for failure to prosecute. Plaintiff served four of the Defendants, eventually voluntarily
`
`dismissing three of them, leaving Defendant TP Apparel, LLC (“TPA”).
`
`WHEREAS, on November 14, 2020, TPA informed Plaintiff that (1) TPA believed the
`
`copyright infringement claim against it was improper and baseless because TPA was not
`
`provided notice and an opportunity to cure before Plaintiff commenced a lawsuit as stipulated in
`
`a previous settlement agreement, (2) TPA was informed that no sale of the allegedly infringing
`
`product had occurred and (3) Plaintiff could not claim copyright infringement under the Supreme
`
`Court decision, Fourth Estate Pub. Benefit Corp. v. Wall-Street.com, LLC, 139 S. Ct. 881 (2019),
`
`because he did not have the actual copyright registration when the action was commenced. TPA
`
`stated in the email that TPA would be entitled to recover attorneys’ fees if TPA were forced to
`
`bring a motion to dismiss to terminate the case.
`
`
`
`Case 1:20-cv-09238-LGS Document 58 Filed 10/19/21 Page 2 of 7
`
`WHEREAS, on November 18, 2020, Plaintiff responded that “there is an ambiguity in
`
`the settlement agreement” and that “the likelihood of [Defendant] receiving attorney’s fees
`
`against a pro se plaintiff that has brought an action in good faith are slim to none.”
`
`WHEREAS, on November 25, 2020, Plaintiff stated that he had “not yet received the
`
`copyright registration certificate” for the work at issue. Later that day, TPA renewed its request
`
`that Plaintiff dismiss the suit or TPA would move to dismiss and seek attorneys’ fees in
`
`connection with the motion. Plaintiff refused.
`
`WHEREAS, on December 7, 2020, TPA filed a pre-motion letter for a motion to dismiss
`
`as required by the Court’s individual rules. Plaintiff was ordered to file a response. When he did
`
`not, his time to respond was extended and a pre-motion conference was scheduled for January 7,
`
`2021. Plaintiff again failed to respond or attend the January 7, 2021, conference. A conference
`
`was scheduled for January 14, 2021, but Plaintiff again failed to appear.
`
`WHEREAS, on January 14, 2021, TPA filed a motion to dismiss the claims against it.
`
`Plaintiff was ordered to respond by February 4, 2021, and to attend a conference scheduled for
`
`February 11, 2021. Plaintiff did not file a response or attend the conference.
`
`WHEREAS, on February 11, 2021, the case against TPA was dismissed because the
`
`Complaint did not allege registration of the copyright and Plaintiff had admitted to TPA that
`
`Plaintiff had not received the copyright registration certificate.
`
`
`
`WHEREAS, on April 9, 2021, TPA filed the instant motion for attorneys’ fees. On April
`
`13, 2021, Plaintiff was ordered to file a response by May 4, 2021. Plaintiff did not file a
`
`response.
`
`WHEREAS, section 505 of the Copyright Act “grants courts wide latitude to award
`
`
`
`2
`
`
`
`Case 1:20-cv-09238-LGS Document 58 Filed 10/19/21 Page 3 of 7
`
`attorney’s fees based on the totality of the circumstances. . . . [S]everal nonexclusive factors . . .
`
`inform a court’s fee-shifting decisions: frivolousness, motivation, objective unreasonableness[,]
`
`and the need in particular circumstances to advance consideration of compensation and
`
`deterrence.” Kirtsaeng v. John Wiley & Sons, Inc., 136 S. Ct. 1979, 1985 (2006) (internal
`
`quotation marks omitted); Hello I Am Elliot, Inc. v. Sine, No. 19 Civ. 6905, 2021 WL 1191971,
`
`at *4 (S.D.N.Y. Mar. 30, 2021). Unreasonableness is accorded “substantial weight.” Kirtsaeng,
`
`136 S. Ct. at 1988; Charles v. Seinfeld, No. 18 Civ. 1196, 2021 WL 761851, at *2 (S.D.N.Y.
`
`Feb. 26, 2021).
`
`WHEREAS, “[w]hile we are mindful that attorney’s fees should only rarely be awarded
`
`against plaintiffs proceeding pro se, such an award is appropriate where, as here, the district
`
`court’s determination that the plaintiff’s ‘claim was frivolous, unreasonable, or groundless, or
`
`that the plaintiff continued to litigate after it clearly became so,’ finds support in the record.”
`
`Bauer v. Yellen, 375 F. App’x 154, 156 (2010) (summary order) (quoting Hughes v. Rowe, 449
`
`U.S. 5, 15 (1980)); see, e.g., Edwards v. Barclays Servs. Corp., No. 19 Civ. 9326, 2020 WL
`
`2087749, at *7 (S.D.N.Y. May 1, 2020), R. & R. adopted, 2020 WL 3446870 (S.D.N.Y. June 23,
`
`2020); U.S. ex rel. Taylor v. Times Herald Rec., Newspaper, No. 91 Civ. 3240, 1992 WL
`
`236163, at *2 (S.D.N.Y. Apr. 2, 1992), aff’d, 990 F.2d 623 (2d Cir. 1993); Cornett v. Mfrs.
`
`Hanover Tr. Co., 684 F. Supp. 78, 80 (S.D.N.Y. 1988), aff’d, 902 F.2d 1556 (2d Cir. 1990).
`
`WHEREAS, while Plaintiff has proceeded pro se, he has filed numerous similar
`
`copyright lawsuits. He is familiar with and was advised of the relevant copyright law -- that the
`
`Supreme Court held in Fourth Estate that plaintiffs must “apply for registration and receive the
`
`Copyright Office’s decision on [the] application before instituting suit.” 139 S. Ct. at 891. As
`
`
`
`3
`
`
`
`Case 1:20-cv-09238-LGS Document 58 Filed 10/19/21 Page 4 of 7
`
`TPA informed Plaintiff of the law on November 14, 2020, Plaintiff’s refusal to dismiss this
`
`action against TPA after that date was unreasonable, as was Plaintiff’s complete disregard of the
`
`Court’s related orders to respond to TPA and appear for a court conferences, causing TPA to
`
`incur unnecessary legal fees. (Plaintiff’s conduct was consistent throughout the litigation, as
`
`Plaintiff ignored all of the Court’s orders to appear for court conferences and make court filings.)
`
`It is hereby
`
`
`
`ORDERED that counsel’s request for $11,707.50 as attorneys’ fees is GRANTED as
`
`reasonable.
`
`Appropriate attorneys’ fees are calculated by determining a reasonable hourly rate for the
`
`attorneys’ work and finding the reasonable number of hours required by a given case. Arbor Hill
`
`Concerned Citizens Neighborhood Ass’n v. County of Albany, 522 F.3d 182, 189-90 (2d Cir.
`
`2007); Latin Am. Music Co. v. Spanish Broad. Sys., No. 13 Civ. 1526, 2020 WL 2848232, at *5
`
`(S.D.N.Y. June 1, 2020).
`
`Mr. Wilson’s hourly rate of $525 is reasonable. “[C]ourts in this district have generally
`
`found hourly rates of $400 to roughly $750 to be appropriate for partners in copyright and
`
`intellectual property cases.” Latin Am. Music Co., 2020 WL 2848232, at *6 (holding that the
`
`rate ranging from $435 to $525 for an entertainment law partner was appropriate while capping
`
`the rate ranging from $825 to $1,000 for another partner with music licensing practice to $750);
`
`see, e.g., Broad. Music, Inc. v. PAMDH Enters., Inc., No. 13 Civ. 2255, 2014 WL 2781846, at
`
`*6-7 (S.D.N.Y. June 19, 2014) (holding that a flat fee of $7,500 was a reasonable estimation
`
`given the numbers of hours spent billed at an hourly rate of $570 for a trademark and copyright
`
`attorney with fifteen years of experience); Sub-Zero, Inc. v. Sub Zero N.Y. Refrigeration &
`
`
`
`4
`
`
`
`Case 1:20-cv-09238-LGS Document 58 Filed 10/19/21 Page 5 of 7
`
`Appliances Servs., Inc., No. 13 Civ. 2548, 2014 WL 1303434, at *8-9 (S.D.N.Y. Apr. 1, 2014)
`
`(finding that the rate of $485 for a partner specializing in copyright and intellectual property
`
`litigation in a Wisconsin office was appropriate). He is an intellectual property litigator with
`
`more than thirty years of experience, including as a partner in national law firms and teaching
`
`intellectual property in a law school and to legal professionals. Mr. Wilson’s fees are reasonable
`
`for a lawsuit in this District. See Rodriguez-Hernandez v. K Bread & Co., Inc., No. 15 Civ.
`
`6848, 2017 WL 2266874, at *5 (S.D.N.Y. May 23, 2017) (“The Court’s analysis is guided by the
`
`market rate prevailing in the community for similar services by lawyers of reasonably
`
`comparable skill, experience and reputation.” (internal quotation marks omitted)).
`
`Mr. Wilson’s billing and payment arrangement also support the conclusion that his fees
`
`are reasonable. The $525 hourly rate is also the amount Mr. Wilson actually charged and TPA
`
`paid pursuant to their standard billing and payment arrangements. “[T]he actual billing
`
`arrangement is a significant, though not necessarily controlling, factor in determining what fee is
`
`‘reasonable.’” Crescent Publ’g Grp., Inc. v. Playboy Enters., Inc., 246 F.3d 142, 151 (2d Cir.
`
`2001); Carrington v. Graden, No. 18 Civ. 4609, 2020 WL 5758916, at *12 (S.D.N.Y. Sept. 28,
`
`2020).
`
`The number of billable hours for which TPA seeks attorneys’ fees is also reasonable.
`
`TPA’s counsel seeks attorneys’ fees only for the period from November 14, 2020, to February
`
`11, 2021, i.e., from the time Plaintiff received notice that his claims were baseless until his
`
`claims were dismissed. TPA’s counsel does not seek fees beginning with the defense of this suit,
`
`nor does he seek fees for the preparation of this motion. As reflected in the detailed billing
`
`records submitted with this motion, TPA’s counsel spent 22.3 hours during the relevant three-
`
`
`
`5
`
`
`
`Case 1:20-cv-09238-LGS Document 58 Filed 10/19/21 Page 6 of 7
`
`month period, including corresponding with Plaintiff, researching and preparing the pre-motion
`
`letter for a motion to dismiss, preparing the actual motion and supporting memorandum of law,
`
`and preparing for and participating in three hearings, each of which was delayed because
`
`Plaintiff failed to appear. These activities were necessary to dismiss the case, and their cost was
`
`increased by Plaintiff’s failure to appear and respond. The attorney hours spent were not
`
`“excessive, redundant, or otherwise unnecessary.” Trustees of N.Y.C. Dist. Council of
`
`Carpenters Pension Fund, Welfare Fund, Annuity Fund, & Apprenticeship, Journeyman
`
`Retraining, Educ. & Indus. Fund v. Best Falcon Constr. Inc., No. 18 Civ. 2997, 2018 WL
`
`6200041, at *4 (S.D.N.Y. Nov. 27, 2018) (approving as reasonable 16.6 hours of attorney time
`
`spent on unopposed petition to confirm arbitration award).
`
`The lodestar calculation based on the reasonable billing rate and hours spent obtaining
`
`dismissal of the claim against TPA is $11,707.50. The $11,707.50 fee award represents a
`
`lodestar multiplier of 1. In this Circuit, “[c]ourts regularly award lodestar multipliers of up to
`
`eight times the lodestar, and in some cases, even higher multipliers.” Azogue v. 16 for 8 Hosp.
`
`LLC, No. 13 Civ. 7899, 2016 WL 4411422, at *7 (S.D.N.Y. Aug. 19, 2016).
`
`Finally, equitable considerations do not weigh against assessing the requested amount
`
`from an individual pro se Plaintiff. See Shangold v. Walt Disney Co., 275 F. App’x 72, 74 (2d
`
`Cir. 2008) (summary order) (holding that a court may consider financial condition as an
`
`equitable matter in awarding attorneys’ fees); Crews v. County of Nassau, No. 06 Civ. 2610,
`
`2019 WL 6894469, at *12 (E.D.N.Y. Dec. 18, 2019). As detailed in the submissions in support
`
`of this motion, Plaintiff is a serial filer and appears to be running a business “representing”
`
`himself and others (even though he is not an attorney) in similar cases, which he settles for their
`
`
`
`6
`
`
`
`Case 1:20-cv-09238-LGS Document 58 Filed 10/19/21 Page 7 of 7
`
`nuisance value. A search of the docket for “Robert G. Lopez” in the Southern District of New
`
`York reflects at least 40 pro se copyright filings. According to TPA’s counsel, Plaintiff
`
`represented “in a Motion for Leave to Appeal in Forma Pauperis in one of his cases that he had
`
`reached settlements with a defendant of $1,000 and $10,000.” Dkt. No. 55 at ¶ 2. Plaintiff
`
`presumably settled with the three defendants in this case who were served and later voluntarily
`
`dismissed.
`
`Defendant TPA is awarded $11,707.50 in reasonable attorneys’ fees. It is further
`
`ORDERED that the Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from
`
`this Order would not be taken in good faith and therefore in forma pauperis status is denied for
`
`the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
`
`
`
`Dated: October 19, 2021
`
`New York, New York
`
`
`
`
`7
`
`