20
`
`INDEX OF APPENDICES
`
`B. Ninth Circuit Memorandum, Johnson v. STORIX, INC., No. 18-56106.....la
`
`C. Ninth Circuit Order Denying Petition for Rehearing
`
`D. District Court Order Awarding Attorneys’ Fees on Remand
`E. District Court Second Amended Judgment
`F. Ninth Circuit Memorandum, Johnson v. STORIX, INC., Case No. 16-
`55439..........................................................................................................
`
`4a
`
`5a
`42a
`
`45a
`
`}
`
`!
`
`

`

`la
`
`A.
`
`Ninth Circuit Memorandum, Johnson v. STORIX, INC., No. 18-56106
`
`UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`
`ANTHONY J. JOHNSON,
`Plaintiff-counter defendant-Appellant,
`
`No. 18-56106
`D.C. No. 3:14-cvO 1873-H-BLM
`
`v.
`
`STORIX, INC., a California
`Corporation, Defendant-
`Counter-claimant-Appellee.
`
`MEMORANDUM*
`
`FILED FEB 5 2020
`MOLLY C. DWYER,
`CLERK
`
`Appeal from the United States District Court
`for the Southern District of California
`Marilyn L. Huff, District Judge, Presiding
`
`Submitted February 5, 2020**
`
`Before: FARRIS, D.W. NELSON, and SILVERMAN, Circuit Judges.
`
`Anthony Johnson (“Johnson”) appeals pro se the district court’s judgment
`
`awarding $407,778.00 in attorneys’ fees to Storix, Inc. (“Storix”) on remand from
`
`this court’s decision in Johnson v. Storix, Inc., No. 16-55439, 716 Fed. App’x. 628
`
`(9th Cir. 2017) (“ Johnson /’).'
`
`We have jurisdiction under 28 U.S.C. § 1291. We review a district court’s
`
`award of attorneys’ fees for an abuse of discretion. Maljack Productions v.
`
`GoodTimesHome Video Corp., 81 F.3d 881, 889 (9th Cir. 1996). We affirm.
`
`This disposition is not appropriate for publication and is not precedent except as
`provided by Ninth Circuit Rule 36-3.
`** The panel unanimously concludes this case is suitable for decision without oral
`argument. See Fed. R. App. P. 34(a)(2).
`1 The prior panel declined this appeal as a comeback.
`
`

`

`2a
`
`Johnson /summarizes in detail the factual and procedural background of this
`
`case. In Johnson /, a prior panel of this court held that while the district court did
`
`not abuse its discretion in choosing to award fees to Storix, the amount of the award
`
`was unreasonable “[blecause Johnson’s claims were neither unreasonable nor
`
`frivolous,” and because “Johnson, who is now pro se, is an individual plaintiff,
`
`rather than another company.” 716 Fed. App’x. at 630-31. This court therefore
`
`remanded this matter to the district court to “reconsider the amount” of the
`
`attorneys’ fee award. Id. at 631.
`
`On remand, the district court reduced its initial fee award by 25%, awarding
`
`Storix $407,778.00 in attorneys’ fees. The district court also awarded Storix post­
`
`judgment interest from the date of the original judgment.
`
`Given the scope of this court’s remand order, we conclude the district court
`
`did not err in holding that it was not required to reexamine its original decision to
`
`award attorneys’ fees to Storix under the Copyright Act, 17 U.S.C. § 505. See
`
`Mendez-Gutierrez v. Gonzales, 444 F.3d 1168, 1172 (9th Cir. 2006) (explaining that
`
`“a district court is limited by this court’s remand in situations where the scope of
`
`the remand is clear”).
`
`The district court did not abuse its discretion in making a 25% reduction of
`
`the total fee award on remand. In accordance with this court’s instructions in
`
`Johnson /, the district court properly considered the objective reasonableness of
`
`Johnson’s claims and his pro se status, and adequately explained why any further
`
`adjustment to Storix’s lodestar amount was not warranted. Hensley v. Eckerhart,
`
`

`

`3a
`
`461 U.S. 424, 437 (1983) (district court must provide a concise but clear explanation
`
`of its reasons for the fee award).
`
`The district court also did not abuse its discretion in awarding post-judgment
`
`interest from the date of the original judgment under 28 U.S.C. § 1961 because this
`
`court affirmed the district court’s decision to award fees and remanded only as to
`
`the amount awarded. See Perkins v. Standard Oil Co. of Cal., 487 F.2d 672, 676 (9th
`
`Cir. 1973) (holding that “[w]here a single item such as attorneys’ fees is reduced on
`
`appeal, the district court’s determination should be viewed as correct to the extent it
`
`was permitted to stand, and interest on a judgment thus partially affirmed should
`
`be computed from the date of its initial entry”).
`
`AFFIRMED.
`
`/
`
`>
`
`

`

`4a
`
`t
`
`B. Ninth Circuit Order Denying Petition for Rehearing
`UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`
`ANTHONY J. JOHNSON,
`Plaintiff-counter defendant-Appellant
`
`v.
`
`No. 18-56106
`D.C. No. 3:i4-cv-01873-H-BLM
`Southern District of
`California, San Diego
`
`STORIX, INC., a California Corporation,
`Defendant- counter-claimant-Appellee.
`
`ORDER
`
`FILED FEB 21 2020
`MOLLY C.
`DWYER, CLERK
`
`Before: FARRIS, D.W. NELSON, and SILVERMAN, Circuit Judges.
`
`Appellant’s Petition for Panel Rehearing filed on February 11, 2020, is hereby
`DENIED.
`
`

`

`5a
`
`C. District Court Order Awarding Attorneys’ Fees on Remand
`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF CALIFORNIA
`
`ANTHONY JOHNSON,
`
`Case No.: 3:14-cv-01873-H-BLM
`
`Plaintiff,
`
`v.
`STORIX, INC., a California corporation,
`
`ORDER AWARDING ATTORNEYS’
`FEES ON REMAND
`[Doc. No. 285.]
`
`Defendant.
`
`On November 16, 2016, after a jury trial, the Court entered judgment in favor
`
`of Defendant Storix, Inc. (“Storix”) and against Plaintiff Anthony Johnson
`
`(“Johnson”) on
`
`Johnson’s claim of copyright infringement, and awarded Storix
`
`attorneys’ fees. (Doc. No. 246.) On December 19, 2017, the United States Court of
`
`Appeals for the Ninth Circuit affirmed the jury’s verdict on liability, as well as the
`
`Court’s decision to award Storix attorneys’ fees. Johnson v. Storix, Inc., 716 F. App’x
`
`628, 631 (9th Cir. 2017), cert. pet. filed, No. 17-1503 (Apr. 25, 2018). However, the
`
`Ninth Circuit held that the fees awarded were “unreasonable,” and remanded with
`
`instructions for the Court “to reconsider the amount.” Id. at 632.
`
`After receiving the Ninth Circuit’s mandate, (Doc. No. 283), the Court
`
`ordered the parties to submit supplemental briefing on the amount of attorneys’
`
`fees to be awarded to Storix. (Doc. No. 284.) After receiving and reviewing that
`
`briefing, (see Doc. Nos. 285, 288, 289), the Court held a hearing on the matter on
`
`August 6, 2018. Johnson appeared on his own behalf, while Storix was represented
`
`;
`
`!
`
`

`

`6a
`
`by Paul A. Tyrell and Sean M. Sullivan. The Court now turns to the sole remaining
`
`issue on remand: the amount of reasonable attorneys’ fees to be awarded to Storix.
`
`Background
`
`The parties went to trial to determine whether Johnson—Storix’s former
`
`CEO and majority shareholder—transferred his copyright in a software program
`
`called SBAdmin to Storix in 2003 at the time of Storix’s incorporation. The jury
`
`found that “Johnson transferred ownership of all pre-incorporation copyrights,
`
`including SBAdmin Version 1.3, in writing from himself to StorixU” (Doc. No. 246.)
`
`I. The Court’s Prior Fee Orders
`
`On December 15, 2015, a jury rendered a special verdict in favor of Storix on
`
`each of Johnson’s causes of action. (Doc. No. 154.) Storix then filed a motion seeking
`
`$1,078,232.75 in attorneys’ fees and $236,943.96 in nontaxable costs pursuant to 17
`
`U.S.C. § 505. (Doc. No. 165.) After receiving full briefing on the motion, the Court
`
`held a fees hearing on February 23, 2016. (Doc. No. 192.) Thereafter, the parties
`
`engaged in unsuccessful mediation. (Doc. Nos. 202, 204, 213.)
`
`On June 16, 2016, the Supreme Court issued an opinion clarifying the
`
`standard for awarding fees under the Copyright Act. See Kirtsaeng v. John Wiley &
`
`Sons, Inc., 136 S. Ct. 1979 (2016). The Court then ordered the parties to fide
`
`supplemental briefing addressing Kirtsaeng’s impact on Storix’s fees motion. (Doc.
`
`No. 215.) Pursuant to the Court’s instructions, the parties each filed two
`
`supplemental memoranda. (Doc. Nos. 217, 218, 223, 224.) On August 15, 2016, th6
`
`Court held a second hearing on Storix’s fee motion. (Doc. No. 229.)
`
`

`

`7a
`
`On August 17, 2016, the Court granted Storix’s fee request in part and denied
`
`it in part. (Doc. No. 230.) In accordance with Kirtsaeng, the Court considered
`
`“Johnson’s motivations, the reasonableness of [his] positions, the degree of . . .
`
`Storix’s success, the need to advance considerations of compensation and
`
`deterrence, and the frivolousness of . . . Johnson’s litigation positions and tactics.”
`
`(Id. at 4.) With respect to Johnson’s motivations in bringing this suit, the Court
`
`noted that “Johnson took a number of actions demonstrating that his motivation
`
`was not simply to von damages for alleged copyright infringement . . . but also to
`
`wrest control of [Storix] from its majority shareholders and to force the company to
`
`‘close its doors.’” (Id. at 5-6 (citation omitted).) Specifically, the Court recounted an
`
`email Johnson sent to several Storix directors and employees entitled “Buckle up
`
`boys!” where Johnson stated:
`
`That means, when I win the very near copyright decision, which we all
`know I will, the company will be paying back all my legal expenses.
`And you will be paying the company back, for mine and its expenses.
`Here's your one option. Get the f[ ... ] out. Give your stock back to the
`company, resign your board seat, terminate your employment. Leave
`with just what you gave me. Only then your name will be removed
`from the derivative! ]action, giving you some hope of keeping your ;
`homes and perhaps finding other jobs. But once this is filed, all options
`are off the table. The damages I will be granted in the copyright case
`will transfer from the company to YOU.
`(Doc. No. 66-1, Huffman Decl. Ex. A, at 5-9.) The Court also noted that Johnson
`
`took other actions like sending an “announcement to . . . Storix’s customers in which
`
`[Johnson] demanded that the customers cease paying . . . Storix for the use of its
`
`software,” and sending “an email to one of . . . Storix’s employees declaring a hope
`
`that [Johnson’s] announcement to the company’s customers would result in . .
`
`

`

`8a
`
`Storix running out of money so that it would be unable to continue defending the
`
`lawsuit” and threatening “litigation that would cause the employee to lose his
`
`, home.” (Doc. No. 230 at 5-6.)
`
`The Court then turned to the objective reasonableness of Johnson’s litigation
`
`positions. The Court noted that, as recounted above, “Johnson’s litigation tactics
`
`became increasingly unreasonable as the case progressed.” (Id. at 6.) The Court
`
`further noted that:
`
`On March 15, 2004, Plaintiff Johnson signed an annual report (the
`‘Annual Report’) that stated, ‘2003 represented the first 10 months in
`the life of Storix as a Corporation. Prior to 2003, Storix Software was a
`sole proprietorship. All assets from Storix Software were transferred to
`Storix Inc, as of its incorporation of February 24, 2003.’ Plaintiff
`Johnson survived summary judgment by arguing that the Annual
`Report did not memorialize his intent to transfer the copyright in
`SBAdmin to Defendant Storix.
`At trial, Defendant Storix adduced overwhelming evidence
`demonstrating that the Annual Report did in fact memorialize Plaintiff
`Johnson’s intent to transfer the copyright in SBAdmin. For example,
`shortly after the 2003 incorporation, the ‘clickwrap’ license for
`SBAdmin stated, ‘Copyright (c) 1999-2003 Storix, Inc.’ On January 29,
`2004, Plaintiff Johnson sent an email insisting that a distributor
`refrain from suppressing a copyright statement in the software
`reading, ‘Copyright (c) 1999-2003 Storix, Inc.’ On February 17, 2004,
`and on March 7, 2007, Plaintiff Johnson signed distribution
`agreements that stated, ‘STORIX shall retain and own all right, title
`and interest in [SBAdmin] . . . [and] reserves to itself all . . . benefits
`afforded under U.S. copyright law
`Significantly, on January 24, 2006, Plaintiff Johnson stated in an
`email to a German lawyer who was advising Storix in a trademark
`dispute, ‘It is not entirely possible for us to completely abohsh the use
`of STORIX with our product, as it is the company that owns the
`copyright to the product, documentation, web site and support.’
`Plaintiff Johnson did not state that Defendant Storix was using the
`copyright pursuant to a license.
`
`

`

`9a
`
`Similarly, on March 26, 2007, Plaintiff Johnson sent an email to his
`employees instructing them to include language on the Storix website
`and software documentation that read, ‘Copyright Storix, Inc. 1999-
`2007 USA.’ On August 20, 2010, Plaintiff Johnson sent an email to the
`Oracle Corporation that stated, ‘The company acquiring Storix will
`gain the most comprehensive disaster recovery product available for
`any operating system on the market.’
`On August 26, 2010, Plaintiff Johnson made a submission to the IBM
`Corporation in which he proposed selling Storix to IBM and stated,
`‘IBM would gain the most comprehensive disaster recovery product
`available for any UNIX or Linux operating system on the market
`In summary, over the course of many years, Plaintiff Johnson
`repeatedly and consistently stated to third parties that Defendant
`Storix owned the copyright in SBAdmin, which was the company’s
`most significant asset.
`When confronted at trial with the representations he made to third
`parties when he sought to sell Storix, Inc., Plaintiff Johnson stated, ,
`‘Yeah, and I lied. I admit it. I bed.’ The evidence Defendant Storix
`adduced confirmed that the Annual Report meant what it said: when
`Plaintiff Johnson said he was transferring ‘all assets,’ he meant ‘all
`assets,’ including the copyright. In the face of this overwhelming
`evidence, it was unreasonable for Plaintiff Johnson to maintain that he
`did not intend to transfer the copyright.
`(Id. at 7-9 (alterations added, citations omitted).)
`
`The Court nevertheless concluded that, pursuant to governing Ninth Circuit
`
`precedent, Johnson’s litigation positions were objectively reasonable as a matter of
`
`law because they hinged on disputed material facts that reached a jury, and the
`
`Court gave substantial weight to that assessment. (Id. at 9 (citing VMG Salsoul,
`
`LLC v. Ciccone, 824 F.3d 871, 887 (9th Cir. 2016)).) In Kirtsaeng, the Supreme
`
`Court held that a district court must give “substantial weight to the objective
`
`(un)reasonabless of a losing party’s litigating position” in deciding whether to award
`
`attorneys’ fees under the Copyright Act. 136 S. Ct. at 1986. Two weeks before
`
`Kirtsaeng was issued, the Ninth Circuit held that if “a plaintiff has a claim that
`
`

`

`10a
`
`hinges on disputed facts sufficient to reach a jury, that claim necessarily is
`
`reasonable because a jury might decide the case in the plaintiffs favor.” VMG
`
`Salsoul, 824 F.3d at 887. Bound by VGM Salsoul. the Court determined that
`
`. Johnson’s litigation positions were objectively reasonable as a matter of law, despite
`
`the jury’s assessment that Johnson’s litigation positions were unreasonable in
`
`fact.1
`
`The Court next considered the degree of success obtained by Storix. The
`
`Court noted that Storix won on every material issue submitted to the jury, and
`
`therefore concluded that “the degree of success factor weighs in favor of. . . Storix.”
`
`•y.
`
`(Id. at 10.)
`
`Thereafter, the Court evaluated whether a fee awarded was needed to
`
`advance considerations of compensation and deterrence. The Court concluded that
`
`Johnson “engaged in a variety of behaviors that should be deterred.” (Id.) The Court
`
`noted that:
`
`On January 16, 2016, a month after the jury returned its verdict
`against him, Plaintiff Johnson sent an email to a Storix employee
`asking the employee to secretly communicate with him about what was
`happening inside the company and to delete their correspondence.
`That email also indicated that Plaintiff Johnson had been working on
`revising the SBAdmin software and that he had a marketable product.
`Additionally, the email stated, ‘[Storix's leadership] tell you they now
`the copyright, but they don't.’ In light of the jury's verdict stating
`own
`
`1 The Court also followed VGM Salsoul’s holding that cases that proceed to trial are always
`objectively reasonable despite that holding’s tension with Kirtsaeng’s observations that: (i)
`an attorneys’ fees award in a copyright case is meant to give a litigant with a meritorious
`case “an incentive to litigate the case all the way to the end;” and (ii) “a court may not treat
`prevailing plaintiffs and prevailing defendants any differently!"..]” 136 S. Ct. at 1985-86.
`
`

`

`11a
`
`that Defendant Storix owns all copyrights to SBAdmin, Defendant
`Storix sent a cease and desist letter to Plaintiff Johnson demanding
`that he cease copying, distribution, modification, or sale of any version
`of SBAdmin. On January 22, 2016, Plaintiff Johnson stated that he
`would not return materials related to SBAdmin and declined to
`respond to the demand that he cease copying, distribution,
`modification, or sale of SBAdmin.
`Plaintiff Johnson's pre-judgment litigation tactics should also be
`deterred. It was inappropriate for Plaintiff' Johnson to tell Defendant
`Storix’s shareholders to ‘get the [expletive] out’ and to attempt to
`coerce them into surrendering control of the company. It was
`inappropriate for Plaintiff Johnson to demand that Defendant Storix’s
`customers stop paying for the use of its software in an attempt to
`prevent Defendant Storix from having enough money to continue
`defending the lawsuit. It was also inappropriate for Plaintiff Johnson
`to threaten Defendant Storix’s directors with the loss of their homes
`while he was telling the customers to stop paying Storix to undermine
`the company.
`(Id. at 10-11 (citations omitted).)
`
`Finally, the Court considered whether Johnson’s case was frivolous. The
`
`Court concluded that the case was not frivolous, as it contained disputed facts that
`
`required resolution by a jury. (Id. at 12.)
`
`Taking all of these factors together, the Court concluded that an award of
`
`I
`
`attorneys’ fees to Storix was appropriate under the circumstances. The Court
`
`concluded that “Johnson’s motivation, the degree of ... Storix’s success, and the
`
`' need to advance considerations of compensation and deterrence all weighted]
`
`heavily in . . . Storix’s favor.” (Id. at 13.) The Court noted that these factors
`
`outweighed the fact that Johnson’s case survived summary judgment, even after the
`
`Court gave substantial weight to that fact. (Id.) See Kirtsaeng, 136 S. Ct. at 1988-
`
`

`

`12a
`
`89 (holding that “a court may order fee-shifting because of a party’s litigation
`
`misconduct, whatever the reasonableness of his claims or defenses”).
`
`After deciding that a fee award was warranted, the Court exercised its
`
`discretion to reduce the fees requested by Storix in order to narrowly tailor the
`
`award to Johnson’s misconduct. Rather than awarding fees for the entirety of this
`
`litigation, the Court granted Storix only the fees it incurred from October 6, 2015—
`
`the date of Johnson’s “Buckle up boys!” email—through the end of trial. (Id.) The
`
`Court excluded fees associated with: (i) opposing several of Johnson’s motions in
`limine; (ii) mediation in the spring of 2016; (iii) and the supplemental briefing the)
`Court ordered in light of Kirtsaeng. (Id. at 14.) The Court also declined to award
`
`any
`
`costs beyond those taxable pursuant to 28 U.S.C. § 1920. (Id.) The Court
`
`ordered Storix to submit supplemental briefing regarding the specific amount to be
`
`awarded in light of the Court’s fees Order, and further considered Johnson’s
`
`response. (Doc. Nos. 234, 239, 240.) The Court also denied Johnson’s motion for
`
`reconsideration. (Doc. No. 238.)
`
`After reviewing the parties’ supplemental submissions, the Court issued a
`
`final Order awarding Storix $543,704, less than half of the fees and costs it had
`
`originally requested. (Doc. No. 241.) The Court found that Storix’s timesheets were
`
`professional and detailed, that Storix’s attorneys had not spent excessive time or
`
`r used excessive staff litigating the case, and that Johnson was not entitled to a fee
`
`offset in fight of the Storix shares that he owns. (Id. at 5-9.) The Court further
`
`awarded fees incurred for the litigation necessary to resolve Storix’s attorneys’ fees
`
`

`

`motion. (Id.) The Court entered an amended judgment reflecting the fee award on
`
`13a
`
`November 16, 2016.2 (Doc. No. 246.)
`
`II. The Ninth Circuit’s Opinion
`
`Johnson appealed to the Ninth Circuit, and that court affirmed in part and
`
`reversed in part the Court’s judgment. 716 F. App’x at 630. The Court of Appeals
`
`rejected each of Johnson’s challenges to the jury’s verdict, and held that the Court
`
`“did not abuse its discretion in choosing to award fees to Storixl.]” Id. at 631-32.
`
`However, the panel further held “that the amount of the award was unreasonable.”
`
`Id. at 632. The panel observed that because “Johnson’s claims were neither
`
`unreasonable nor frivolous, the amount of $543,704 was excessive.” Id. The panel
`
`further observed that Johnson “is an individual plaintiff, rather than another
`
`company,” and that the “‘relative financial strength of the parties is a valid
`
`consideration’ in determining ‘what amount is reasonable.’” Id. (quoting Lieb v.
`
`j
`
`Tonstone Indus.. Inc.. 788 F.2d 151, 156 (3d Cir. 1986)). While the Ninth Circuit
`
`: declined to “‘pass judgment on what the award should be,”’ it remanded with
`
`instructions for the Court to “reconsider the amount.” Id- (quoting Woodhaven
`
`Homes & Realty. Inc, v. Hotz. 396 F.3d 822, 824 (7th Cir. 2005)).
`
`2 The Court stayed execution of the judgment pending appeal on the condition that
`Johnson agreed to post a supersedeas bond in the full amount of the judgment. (Doc. Nos.
`256, 274.) Johnson posted the required bond on June 30, 2017. (Doc. No. 273.) The Ninth
`Circuit denied Johnson’s motion to release the bond. (Doc. No. 276.)
`
`

`

`HI. The Parties’ Arguments
`
`14a
`
`The parties submitted supplemental briefing addressing the Ninth Circuit’s
`
`decision. (Doc. Nos. 285, 288, 289.) Johnson argues that the Court should award no
`
`fees at all. (Doc. No. 288 at 19.) Storix argues that the Court’s original award was
`
`fundamentally reasonable, and that the Court should therefore impose no more
`
`than a 10% reduction on remand. (Doc. No. 285 at 19.) Storix also requests post­
`
`judgment interest. (Id. at 20.)
`
`As a preliminary matter, the Court denies Johnson’s request that no fees be -
`
`awarded. The Court previously decided that an award of attorneys’ fees to Storix
`
`was warranted on the facts of this case, a conclusion that the Ninth Circuit
`
`affirmed. 716 F. App’x at 632. The Ninth Circuit’s limited remand “to reconsider the
`
`amount” of fees to be awarded to Storix, id., is not capacious enough to permit the
`
`Court to reexamine whether to award fees at all.3 See, e.g., In re Sanford Fork &
`
`Tool Co.. 160 U.S. 247, 255 (1895) (“When a case has been once decided by this court
`
`on
`
`appeal, and remanded to the circuit court, whatever was before this court, and
`
`disposed of by its decree, is considered as finally settled .... [The lower] court
`
`cannot vary it, or examine it for any other purpose than execution; or give any other
`
`or further relief; or review it, even for apparent error, upon any matter decided on
`
`appeal . . . .”); Mendez-Gutierrez v. Gonzales. 444 F.3d 1168, 1172 (9th Cir. 2006)
`
`3 The Court recognizes its discretion to award a low or nominal sum of attorneys’ fees.
`However, as explained throughout this Order, the Court concludes that a minimal fee
`award would be inappropriate in light of the facts of this case.
`
`

`

`15a
`
`(“[W]e have repeatedly held, in both civil and criminal cases, that a district court is
`
`limited by this court’s remand in situations where the scope of the remand is
`
`clear.”); Planned Parenthood of Columbia/Willamette Inc, v. Am. Coalition of Life
`
`Activists. 422 F.3d 949, 966 (9th Cir. 2005).
`
`Further, based on the procedural history recounted above, the Court
`
`concludes that an award of reasonable attorney fees to Storix is justified in light of
`
`Johnson’s unreasonable and inappropriate litigation conduct. Accordingly, the
`
`Court will endeavor to comply with the Ninth Circuit’s remand instructions to
`
`reduce Storix’s award. In doing so, the Court will attempt “to do rough justice, not
`
`to achieve auditing perfection,” taking into account the fact that Johnson “is an
`
`individual plaintiff, rather than another company” and that “Johnson’s claims were
`
`neither unreasonable nor frivolousU” 716 F. App’x at 632 (citations and internal
`
`quotation marks omitted).
`
`I. Attorneys’ Fees
`
`Discussion
`
`The Copyright Act allows a district court, “in its discretion,” to award a
`
`reasonable attorney’s fee to the prevailing party” in a copyright case. 10 U.S.C. §
`
`505. “When calculating the amount of attorney fees to be awarded in a litigation,
`
`the district court applies the lodestar method, multiplying the number of hours
`
`reasonably expended by a reasonable hourly rate.” Rvan v. Editions Ltd. W., Inc.,
`
`786 F.3d 754, 763 (9th Cir. 2015). “When a party seeks an award of attorneys’ fees,
`
`that party bears the burden of submitting evidence of the hours worked and the-
`
`rate paid. In addition, that party has the burden to prove that the rate charged is in
`
`

`

`16a
`
`line with the prevailing market rate of the relevant community.” Carson v. Billings
`
`Police Den’t, 470 F.3d 889, 891 (9th Cir. 2006) (citations and quotation marks
`
`omitted). The Court may adjust the lodestar figure in light of twelve factors:
`
`(l) 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; (ll) the nature and length of the
`professional relationship with the client; and (12) awards in similar
`cases.
`Carter v. Caleb Brett LLC. 757 F.3d 866, 869 (9th Cir. 2014).
`
`In Kirtsaeng, the Supreme Court held that a district court must give
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`“substantial weight to the objective (un)reasonableness of a losing party’s litigating
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`position” in fashioning an award of attorneys’ fees. 136 S. Ct. at 1986. However,
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`“objective reasonableness can only be an important factor in assessing fee
`
`applications—not the controlling one.” Id. at 1988. The Copyright Act “confers broad
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`discretion on district courts and, in deciding whether to fee-shift, they must take
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`into account a range of considerations beyond the reasonableness of litigating)
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`positions.” Id- “For example, a court may order fee-shifting because of a party’s
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`litigation misconduct, whatever the reasonableness of his claims or defenses.” Id. at
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`1988-89; see also Snanski Enters.. Inc, v. Telewizia Polska S.A., 278 F. Supp. 3d
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`210, 215-16 (D.D.C. 2017) (awarding attorney fees due in part to litigation
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`misconduct in a copyright case).
`
`

`

`17a
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`The Court has thoroughly reviewed the Ninth Circuit’s opinion, the parties’
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`arguments, the relevant law, and the Court’s prior fees Orders.4 After undertaking
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`this examination, the Court has decided to apply a 25% across-the-board reduction
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`to Storix’s original fee award. The Ninth Circuit has held “that a district court may
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`reduce attorneys’ fees by a percentage, so long as the court sets forth clear and
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`concise reasons
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`for adopting this approach.” Camacho v. Bridgeport Fin., Inc., 523
`
`F.3d 973, 982 (9th Cir. 2008); see also Gonzalez v. City of Maywood, 729 F.3d 1196,
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`1199 (9th Cir. 2013); Schwartz v. Sec’v of Health & Human Servs., 73 F.3d 895, 909
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`(9th Cir. 1995); Beastie Bovs v. Monster Energy Co.. 112 F. Supp. 3d 31, 57
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`(S.D.N.Y. 2015).
`
`In this case, a percentage based approach is the most effective way for the
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`Court to fully and faithfully comply with the Ninth Circuit’s mandate. Storix’s
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`attorneys submitted clear and professional timekeeping reports justifying the fees
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`they sought, and did not either charge excessive rates, overstaff this “betthe-
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`company” case, or spend excessive time litigating it. There is thus no fair basis for
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`the Court to further adjust the lodestar figure in complying with the Ninth Circuit’s
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`directive to reduce Storix’s award.
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`Moreover, the Ninth Circuit ordered the Court to use an essentially equitable
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`approach in determining Storix’s fees—“to do rough justice, not to achieve auditing
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`perfection.” 716 F. App’x at 632 (citation and internal quotation marks omitted). A
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`percentage based approach permits the Court to take into account the objective
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`4 The Court attaches its prior Orders to this Order as Exhibits A and B, respectively.
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`

`

`18a
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`reasonableness of Johnson’s claims and his status as an individual without unfairly
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`impugning the work done by Storix’s attorneys.
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`The Court concludes that reducing Storix’s fees by 25% is appropriate.
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`Although Johnson is an individual now proceeding pro se, he was represented by
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`counsel during all proceedings for which the Court awarded attorneys’ fees.5
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`Further, while Johnson’s claims were reasonable enough to survive summary
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`judgment, Johnson’s conduct during this litigation went well beyond what was
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`necessary to protect his asserted legal interests. There is simply no justification for
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`Johnson’s decisions to send threatening emails to Storix employees, and to try to
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`interfere with Storix’s client relationships in the explicit hope of leaving Storix too
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`financially crippled to defend this lawsuit. Nevertheless, this deterrence must not
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`go so far that it deters plaintiffs (like Johnson) with reasonable claims from filing
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`suit at all. And the Court applies the Ninth Circuit’s guidance to take into account
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`5 Johnson was originally represented by Gary Eastman of Eastman & McCartney, LLP. !
`On January 12, 2016, the Court granted Johnson’s motion to substitute Andrew Skale of
`Mintz Levin Cohn Ferris Glovsky & Popeo, PC, a large 500-attorney law firm ranking in
`the Am Law 100, as his attorney of record. (Doc. Nos. 172, 173.) On May 5, 2017, Johnson
`parted ways with his attorneys from Mintz Levin, (Doc. Nos. 265, 266), and subsequently
`retained Barnard F. King, III as his counsel of record. (Doc. No. 267.) Johnson began
`appearing pro se in this Court on March 28, 2018. (Doc. Nos. 280, 281.) The Court awarded
`attorneys’ fees for litigation that took place between October 6, 2015 and November 16,
`2016, when Johnson was variously represented by Eastman & McCartney and Mintz Levin,
`respectively.
`As Storix correctly points out, Johnson was represented by three attorneys (Gary
`Eastman, Tifanie Nelson, and Joseph Harkins) at trial, as compared with only two
`attorneys for Storix (Paul Tyrell and Sean Sullivan). (Doc. No. 148.) Johnson also sued his
`attorneys from Mintz Levin—who handled his posttrial representation—in the San Diego
`County Superior Court after paying them $375,000 for nine months of legal work. (Doc. No.
`285-1, Tyrell Deck, Ex. B.) The amount that Johnson paid for his own highend legal
`representation post-trial undercuts any argument that, the fees Storix requests are
`unreasonably inflated.
`
`

`

`19a
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`the fact that Johnson “is an individual plaintiff, rather than another company.” 716
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`F. App’x at 632. The Court determines that applying a 25% reduction in Storix’s
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`fees leaves an award that is sufficient to deter Johnson’s conduct, without being
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`excessive or unreasonable under the circumstances.
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`The Court’s 25% reduction also takes into account the Court’s decision, upon
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`further reflection, that awarding Storix attorneys’ fees for its four unsuccessful
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`motions in limine (Doc. Nos. 134, 135, 136, 137), and its post-verdict briefing on its
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`motion for attorneys’ fees and nontaxable costs, would not advance the purposes
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`animating the Court’s fee award. As the Court has previously explained, Storix’s fee
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`award was made after balancing Johnson’s improper motivations in bring this suit,
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`the need to deter his inappropriate litigation conduct, and Storix’s success, with the
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`fact that Johnson’s claims were objectively reasonable as a matter of law. (Doc. No.
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`230 at 13.) The fees Storix incurred for its unsuccessful motions in limine and its
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`attorneys’ fees briefing did not stem from Johnson’s improper conduct, or Storix’s
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`success on
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`the merits of this litigation, and thus granting those fees would not
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`further the Court’s purposes in making the award.
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`The Court accordingly reduces Storix’s attorneys’ fees from $543,704 to
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`$407,778.
`
`II. Post-Judgment Interest
`
`Feder