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