Case 2:19-cv-00051-DAK Document 93 Filed 05/26/21 PageID.477 Page 1 of 5
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`_________________________________________________________________________
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF UTAH
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`BENJAMIN VIENT,
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` Plaintiff,
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`vs.
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`ANCESTRY,
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` Defendant,
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`MEMORANDUM DECISION
`AND ORDER
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`Case No. 2:19-CV-51-DAK
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`Judge Dale A. Kimball
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`This matter is before the court on Plaintiff’s Motion for Relief Under Rule 60(a) [ECF
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`No. 84], Plaintiff’s Motion for Facts to Support Plaintiff’s Position [ECF No. 88]; and
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`Defendant’s Motion for Attorney Fees [ECF No. 84]. The court concludes that oral argument
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`would not significantly aid in its determination of the motions. Accordingly, the court issues the
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`following Memorandum Decision and Order based on the parties’ written submissions and the
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`facts and law relevant to the issues.
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`Rule 60(b) Motion
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`Rule 60(b) of the Federal Rules of Civil Procedure provides several grounds for relief
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`from a final judgment or order, including mistake, inadvertence, excusable neglect, newly
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`discovered evidence, fraud, and any other reason that justifies relief. Fed. R. Civ. P. 60(b).
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`Relief under Rule 60(b) is extraordinary and may only be granted in “exceptional
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`circumstances.” Yapp v. Excel Corp., 186 F.3d 1222, 1231 (10th Cir. 1999). “A plaintiff must
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`overcome a higher hurdle to obtain relief from a post-judgment motion than on direct appeal
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`from a judgment.” LeFleur v. Teen Help, 342 F.3d 1145, 1153 (10th Cir. 2003). A plaintiff may
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`not merely rehash arguments that were already addressed and ruled on by the court. See Van
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`Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir. 1991).
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`Plaintiff has failed to meet his burden under Rule 60. Plaintiff’s motion merely rehashes
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`his previous arguments, which were fully considered and ruled upon by the court in its prior
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`decision. Plaintiff asserts several of the arguments that he asserted in his motion for
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`reconsideration, which the court denied. Plaintiff has not demonstrated any mistake or error in
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`law in the court’s prior ruling. In addition, none of Plaintiff’s arguments provides a basis for
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`relief from judgment. Plaintiff has not asserted anything that would make this court revisit or
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`modify its prior rulings. Accordingly, Plaintiff’s motion for relief from judgment is denied.
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`Motion for Facts
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`Plaintiff’s Motion for Facts to Support Plaintiff’s Decision seeks evidentiary facts to
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`support his opposition to Defendant’s Motion for Attorney Fees. Specifically, Plaintiff requests
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`that Defendant produce (1) a list, referenced in the Affidavit of Seth Hoffer [ECF No. 86-1],
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`which included a list of articles on Newpaper.com that referenced Ben Vient and (2) a chart
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`referenced in email correspondence between Defendant and Plaintiff that was provided in
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`Defendant’s discovery responses. Plaintiff asserts that the list and chart are essential to justify
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`his opposition to Defendant’s Motion for Attorney Fees.
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`Plaintiff states that he is filing this motion because it is necessary to support his
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`opposition to Defendant’s motion for attorney fees, but he filed this motion two weeks after he
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`filed his opposition. Plaintiff has not explained how a list of his articles compiled in separate
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`lawsuits is relevant to Defendant’s motion for attorney fees. The parties do not dispute the fact
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`that Plaintiff wrote articles that were available on certain websites. Furthermore, Plaintiff does
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`not explain why he does not already have access to the chart from the other lawsuit. He was a
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`party to the other lawsuits and should have access to the discovery in that case. In addition, the
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`referenced list is public information. Plaintiff does not explain why he could not do his own
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`similar search on newspaper.com. While there may be instances when a party could be entitled
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`to engage in post-judgment discovery, Plaintiff has provided no basis for doing so in this case.
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`Accordingly, the court denies Plaintiff’s motion for facts.
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`Motion for Attorney Fees
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`Section 505 of the Copyright Act grants district courts discretion to award “reasonably
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`attorney’s fees to the prevailing party as part of the costs.” 17 U.S.C. § 505. A party qualifies as
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`the “prevailing party” when the court awards it relief that “materially alter[s] the legal
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`relationship between the plaintiff and the defendant.” Xlear, Inc. v. Focus Nutrition, LLC, 893
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`F.3d 1227, 1236-37 (10th Cir. 2018). A defendant prevails “whenever the plaintiff’s challenge is
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`rebuffed, irrespective of the precise reason for the court’s decision. The defendant may prevail
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`even if the court’s final judgment rejects the plaintiff’s claim for a nonmerits reason.” CRST Van
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`Expedited, Inc. v. E.E.O.C., 136 S. Ct. 1642, 1651-54 (2016).
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`Fees under § 505 are not awarded “as a matter of course.” Fogerty v. Fantasy, Inc., 510
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`U.S. 517, 533 (1994). To award fees under § 505, a court must make a “particularized,” “case-
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`by-case assessment.” Kirtsaeng v. John Wiley & Sons, Inc., 136 S. Ct. 1979, 1985 (2016). The
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`Supreme Court has recognized a list of nonexclusive factors: “frivolousness, motivation,
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`objective unreasonableness (both in the factual and in the legal components of the case) and the
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`need in particular circumstances to advance considerations of compensation and deterrence.”
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`Fogerty, 510 U.S. at 534 n.19. These factors and other considerations must be applied
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`evenhandedly to prevailing plaintiffs and prevailing defendants. Id. Defendant qualifies as a
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`prevailing party in this action.
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`Defendant asserts that Plaintiff’s Amended Complaint was frivolous, he brought it with
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`improper motivations, his factual and legal positions in this lawsuit were objectively
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`unreasonable, and an award of attorney’s fees is necessary to compensate Defendant and deter
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`Plaintiff from engaging in similar misconduct in the future. Plaintiff filed this action despite
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`having already sued and settled his infringement claims in two other cases. Plaintiff contends
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`that his claims have merit. But that assertion is belied by the court’s dismissal of his claims for
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`failure to state a claim. The court recognizes that the merits of Plaintiff’s claims could not be
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`specifically determined, but that was because he repeatedly refused to follow the court’s orders
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`as to how to state a claim. And the exhibits Plaintiff references to support his assertion that his
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`claims have merit do not actually support his position. Therefore, although the claims may not
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`be frivolous, it appears that it was objectively unreasonable for Plaintiff to bring a new action to
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`assert the same claims he had already settled. For these reasons, the court finds it is appropriate
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`to award fees in order to deter Plaintiff from engaging in future repetitive actions. The court
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`recognizes that Defendant has paid over $60,000 in attorney’s fees to defend this action.1 But,
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`for purposes of deterring Plaintiff from further repetitive actions based on the same and already
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`settled matters, the court concludes that a fraction of that amount is sufficient. Accordingly, the
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`court awards Defendant $6,000 in attorney’s fees.
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`1 Plaintiff did not dispute that the attorney’s fees Defendant requested were reasonable. The
`court finds that the hourly rates were in line with rates of comparable Salt Lake attorneys and
`that the number of hours expended were reasonable. The court, however, concludes that an
`amount sufficient to deter Plaintiff from future actions is the appropriate amount to award.
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`Conclusion
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`For the reasons stated above, Plaintiff’s Motion for Relief Under Rule 60(a) [ECF No.
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`89] is DENIED, Plaintiff’s Motion for Facts to Support Plaintiff’s Position [ECF No. 88] is
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`DENIED; and Defendant’s Motion for Attorney Fees [ECF No. 84] is GRANTED IN PART
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`AND DENIED IN PART. The court awards Defendant $6,000 in attorney’s fees.
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`DATED this 26th day of May, 2021.
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`BY THE COURT:
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`__________________________________
`DALE A. KIMBALL,
`United States District Judge
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