Case: 4:21-cv-01505-PLC Doc. #: 40 Filed: 10/07/22 Page: 1 of 19 PageID #: 232
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF MISSOURI
`EASTERN DIVISION
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`GROVER GAMING, et al.,
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`Plaintiffs,
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`vs.
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`)
`)
`)
`)
`) Case No. 4:21-cv-1505 PLC
`)
`ANIL PATEL d/b/a EZ QUICK MART, )
`)
`)
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`Defendant.
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`MEMORANDUM AND ORDER
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`The matter is before the Court on Plaintiffs Grover Gaming’s (Grover Gaming) and Banilla
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`Games, Inc.’s (Banilla) renewed motion for default judgment pursuant to Fed. R. Civ. Pro. 55(b)
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`[ECF No. 23] against Defendant Anil Patel (Patel) doing business as EZ Quick Mart in this
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`copyright and trademark infringement action. Plaintiffs seek statutory damages, a permanent
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`injunction, costs, and attorney’s fees against Defendant. [ECF No. 23] After Plaintiffs filed the joint
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`renewed motion, they voluntarily dismissed some of their claims against Defendant.1 [ECF No.
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`38]. Accordingly, Plaintiffs’ motion is denied as to Banilla, and granted in part and denied in part
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`as to Grover Gaming.
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`I.
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`Background
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`Grover Gaming creates, designs, develops, and manufactures coin-operated electronic
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`games, including a line of electronic video games called Fusion. [ECF No. 1, ¶ 10] Grover Gaming
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`independently created the entirety of the Fusion line, including the graphical interface, the artwork,
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`static images, and audiovisual effects therein. [ECF No. 1, ¶ 17] Grover Gaming distributes its
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`Fusion games in stand-alone gaming cabinets sold through Banilla, its exclusive distributor. [ECF
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`1 Plaintiffs filed a three-count complaint against Defendant, with Grover Gaming seeking relief
`under Counts I and II and Banilla seeking relief under Count III. Plaintiffs voluntarily dismissed Counts II
`and III of the complaint. Although Banilla has not been dismissed from the suit, it no longer has a claim
`against Defendant.
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`No. 1, ¶ 22] End-users purchase these cabinets and games from Banilla. [ECF No. 1, ¶ 22] This
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`lawsuit specifically pertains to the Fusion 4 version of Grover Gaming’s Fusion line. [ECF No. 1, ¶
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`26]
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`Grover Gaming alleged in the complaint that it owns the copyright in the audiovisual work
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`contained in Fusion 4 and has registered that work with the U.S. Copyright Officer as Registration
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`Number PA-2-293-309. [ECF No. 1, ¶28]. It also owns a trademark of the name “FUSION”. [ECF
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`No. 1, ¶ 30] Grover Gaming alleged it places certain information (“Confidential Identifying
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`Information”) into the Fusion games’ software that is briefly displayed during the play of the game
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`and which provides verification that the game console is an authorized Fusion game unit. [ECF No.
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`1, ¶24]
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`Grover Gaming alleged that on October 18, 2021, its investigator verified that Defendant
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`was displaying and making available for play a pirated version of a Fusion 4 gaming machine at his
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`business, the EZ Quick Mart. [ECF No. 1, ¶¶ 6, 32-39] Grover Gaming alleged that the
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`Confidential Identifying Information was absent from the Fusion 4 gaming machine during play,
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`confirming that the machine was pirated. [ECF No. 1, ¶¶ 36-39]
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`Plaintiffs filed a three-count complaint in December 2021. [ECF No. 1] Count I of the
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`complaint is brought under the Copyright Act, 17 U.S.C. §101, et seq., for Defendant’s violation of
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`Grover Gaming’s copyright in Fusion 4’s audiovisual effects through his public display and
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`performance of these effects during the play of the pirated Fusion 4 game on his business’s
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`premises. Count II of the complaint asserts violations of the Lanham Act, 15 U.S.C. §1125, for
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`Defendant’s infringement of Grover Gaming’s trademark of the “FUSION” mark though
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`Defendant’s use of the mark throughout the game play of the pirated Fusion 4 Game on his
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`business’s premises. In Count III, Banilla claims unfair competition under the Lanham Act, 15
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`U.S.C. § 1125(a). In the complaint, Plaintiffs request a preliminary and permanent injunction
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`2
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`enjoining Defendant from using the pirated Fusion 4 Game, statutory damages, and attorney’s fees
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`and costs.
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`Plaintiffs served a summons and copy of the complaint on Defendant on December 30,
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`2021. [ECF No. 7] Although Defendant’s answer to the complaint was due on January 20, 2022, he
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`did not timely file an answer. On February 22, 2022, Plaintiffs filed motions for entry of default by
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`the Clerk and for entry of default judgment. [ECF Nos. 11 & 12] Simultaneously, Defendant filed
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`motions to dismiss the complaint and for appointment of counsel. [ECF Nos. 14, 15] In the motion
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`to dismiss, Defendant alleged he purchased the Fusion 4 gaming machine online from Alibaba.com
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`in April and received delivery of the game in October. [ECF No 15]. Defendant alleged he did not
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`know the game was “fake[,]” and that he initiated the return of the game to the seller, 3D
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`Electronics, after receiving Plaintiffs’ lawsuit. [ECF No. 15] Defendant alleged the seller picked up
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`the game but did not issue him a refund. [ECF No. 15] Defendant requested the Court dismiss the
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`case because he was a “victim” of the seller and believed Plaintiffs “need to go after” the seller of
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`the game. [ECF No. 15] Defendant attached a document purporting to be a “pick[-]up receipt”
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`suggesting “Guangzhou 3D Electronic Technology Co., Ltd.” “picked up” a “Fusion 4 Gaming
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`Box” from the EZ Quick Mart on January 8, 2022. [ECF No. 15]
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`On February 28, 2022, the Court denied Plaintiffs’ motions for entry of clerk’s default and
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`for entry of default judgment finding Defendant’s appearance by virtue of his motion to dismiss,
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`while untimely, demonstrated a desire to contest the action. [ECF No. 17] Plaintiffs filed a
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`memorandum in opposition to Defendant’s motion to dismiss. [ECF No. 19] On March 9, 2022, the
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`Court denied without prejudice Defendant’s motions to dismiss and for appointment of counsel.
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`[ECF No. 20] Defendant did not file an answer or other response to the complaint.
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`On March 31, 2022, Plaintiffs filed renewed motions for clerk’s default and default
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`judgment. [ECF Nos. 22 & 23] In the renewed motion for default judgment, Plaintiffs sought
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`3
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`$30,000 in statutory damages under the Copyright Act on Count I; (2) a permanent injunction
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`enjoining Defendant from further use of Plaintiffs’ intellectual property under the Copyright Act
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`and the Lanham Act; and (3) costs and attorney’s fees. [ECF Nos. 23 & 24] Defendant did not
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`respond to Plaintiffs’ motions.
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`On April 28, 2022, the Court conducted a hearing on Plaintiffs’ renewed motions for entry
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`of clerk’s default and default judgment. [April 28, 2022 docket entry] At the hearing, Defendant
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`appeared pro se and did not oppose Plaintiffs’ motions. [April 28, 2022 docket entry] Defendant
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`acknowledged his failure to timely file an answer to Plaintiffs’ complaint and did not express a
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`desire to do so. [ECF No. 29] On April 29, 2022, the Clerk entered default against Defendant. [ECF
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`No. 30]
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`On July 20, 2022, the Court held a hearing on damages and attorney fees on Plaintiffs’
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`renewed motion for default judgment. [July 20, 2022 docket entry] Plaintiffs appeared by counsel
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`and Defendant did not appear. 2 Plaintiffs requested $30,000 in statutory damages under the
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`Copyright Act on Count I, asserting Defendant’s infringement was willful and that Defendant was a
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`sophisticated businessman and litigant, with several registered business entities and pending
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`lawsuits.3
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`Plaintiffs’ counsel testified in support of Plaintiffs’ damages request. Although Defendant
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`2 Notice of the hearing, sent by the Clerk of the Court via mail to Defendant, was returned
`undeliverable. [ECF No. 32] Prior to the hearing, Plaintiffs’ counsel filed a memorandum stating he emailed
`a copy of the hearing notice to Defendant and that Defendant responded to counsel’s email. [ECF No. 33]
`At the July 20, 2022 hearing, Plaintiffs’ counsel testified he sent Defendant an email on June 18, 2022,
`advising Defendant of the hearing setting with a copy of the hearing notice attached. (Tr. 17) Counsel
`testified he sent the notice to an email address provided by Defendant and which counsel used to
`communicate with Defendant throughout the pendency of the case. (Tr. 17) Defendant responded to the
`email message later that day. (Tr. 17)
`3 Plaintiffs’ counsel testified he was able to identify a “handful” of business entities formed by
`Defendant, including “one that specifically references that its general business purpose is the use of gaming
`systems, identified as Apex Arcade LLC.” (Tr. 22). Counsel also testified he identified “several different
`lawsuits involving either [Defendant] individually or [Defendant’s] entities[.]” (Tr. 23). Upon questioning
`by the Court, counsel stated there was “a connection between [EZ Quick Mart’s address] and some of the
`entities in their registrations” but that he did not have “the opportunity to specifically tie these [businesses
`and lawsuits] to Defendant” through “confirmation from Defendant[.]” (Tr. 24).
`4
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`represented that he returned the pirated gaming console to the seller, counsel stated that Defendant
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`never provided Plaintiffs with information regarding Defendant’s purchase and return of the
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`gaming console despite numerous requests to do so. (Tr. 28-29). Counsel asserted Defendant
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`continued to import games from China after the lawsuit was initiated, testifying that an “import
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`genius report” obtained by counsel showed “Anil Patel” received three imports of “amusement
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`game[s]” from a Chinese shipper on April 27, 2022. (Tr. 22). During a June 30, 2022 visit to the
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`EZ Quick Mart, counsel did not see the pirated Fusion 4 game but did see several other gaming
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`machines in the store. (Tr. 19-20). Counsel did not know the amount Defendant paid for the pirated
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`gaming console but testified that an authentic Fusion 4 gaming console retails for $9,590. (Tr. 26).
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`Counsel also presented argument and testimony in support of Plaintiffs’ attorney’s fees request
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`which will be discussed in greater detail later in the memorandum.
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`Following the hearing, Plaintiffs voluntarily dismissed without prejudice Counts II and III
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`of their complaint, leaving only Grover Gaming’s claim under the Copyright Act. [ECF No. 38]
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`Counsel also filed a second supplemental declaration in support of Plaintiffs’ request for attorney’s
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`fees. [ECF Nos. 39, 39-1]
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`II.
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`Discussion
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`In the renewed motion, Plaintiffs seek a default judgment awarding statutory damages in the
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`amount of $30,000 and a permanent injunction to prevent Defendant’s future act of infringement
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`under the Copyright Act (Count I). [ECF No. 23] Plaintiffs also seek an award of attorney’s fees
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`and costs incurred in bringing this action. [ECF No. 23]
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`A. Default Judgment Standard
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`After default has been entered, the defendant is deemed to have admitted all well-pleaded
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`factual allegations in the complaint. Taylor v. City of Ballwin, Mo., 859 F.2d 1330, 1333, n.7 (8th
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`Cir. 1988). The Court must still “consider whether the unchallenged facts constitute a legitimate
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`5
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`cause of action, since a party in default does not admit mere conclusions of law.” Murray v. Lene,
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`595 F.3d 868, 871 (8th Cir. 2010) (quoting 10A C. Wright, A. Miller & M. Kane, Federal Practice
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`and Procedure § 2688 at 63 (3d ed.1998)). Furthermore, when the complaint asserts a claim for an
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`indefinite or uncertain amount of damages, allegations relating to the amount of damages must be
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`proven in a supplemental hearing or proceeding. Everyday Learning Corp. v. Larson, 242 F.3d 815,
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`818 (8th Cir. 2001); see also Stephenson v. El-Batrawi, 524 F.3d 907, 915–16 (8th Cir. 2008); Fed.
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`R. Civ. P. 55(b)(2)(B) (“The court may conduct hearings or make referrals ... when, to enter or
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`effectuate judgment, it needs to ... determine the amount of damages[.]”)
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`B. Counts II and III – Plaintiffs’ Lanham Act Claims
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`1. Liability
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`In Counts II and III of the complaint, Plaintiffs’ sought recovery for Defendant’s alleged
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`violations of the Lanham Act, 15 U.S.C. §1125. [ECF No. 1] Grover Gaming alleged injuries
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`stemming from Defendant’s infringement of its trademark in the “FUSION” mark in Count II,
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`while Banilla alleged Defendant’s use and display of the pirated gaming console constituted unfair
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`competition in Count III. [ECF No. 1, ¶¶ 53-63, 64-70] In the renewed motion for default
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`judgment, Plaintiffs sought injunctive relief and an award of costs and attorney’s fees related to
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`these claims. [ECF Nos. 23 & 24]
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`Following the hearing on the renewed motion, however, Plaintiffs voluntarily dismissed
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`Counts II and III without prejudice, leaving only Grover Gaming’s claim under the Copyright Act.
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`[ECF No. 38] Although Grover Gaming dismissed one of its claims and Banilla dismissed its only
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`claim, Plaintiffs did not file an amended motion for default judgment and Banilla has not been
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`dismissed from the case. As a result, Plaintiffs’ renewed motion seeks relief on claims that are no
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`longer before the Court. Because Plaintiffs ended their lawsuit on these claims, the Court denies
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`6
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`Plaintiffs’ renewed motion for default judgment with respect to Grover Gaming on Count II and to
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`Banilla on Count III.
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`2. Attorney’s Fees
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`As for Plaintiffs’ request for costs and attorney’s fees associated with these claims, the
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`Lanham Act provides for recovery of “the costs of the action” when a party establishes a violation
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`of the Act and, “in exceptional cases[,]” permits the Court to “award reasonable attorney fees to the
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`prevailing party.” 15 U.S.C. 1117(a). Because Grover Gaming and Banilla dismissed their Lanham
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`Act claims against Defendant, they have not demonstrated a violation of the Act and are not
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`prevailing parties on these claims. Accordingly, Plaintiffs’ requests for an award of costs and
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`attorney’s fees associated with these claims action are denied.4
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`C. Count I – Grover Gaming’s Federal Copyright Claim
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`1. Liability
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`The Copyright Act grants copyright owners the exclusive rights to do and to authorize,
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`among other things, the reproduction of “the copyrighted work”; the preparation of “derivative
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`works based upon the copyrighted work”; the distribution of “copies….of the copyrighted work to
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`the public by sale or other transfer of ownership, or by rental, lease, or lending”; the public
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`performance of “audiovisual works”, and the display of certain “copyrighted work publicly.” 17
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`U.S.C. § 106; Ray v. ESPN, Inc., 783 F.3d 1140, 1144 (8th Cir. 2015). To prevail on a claim of
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`copyright infringement, a plaintiff must establish (1) ownership of a valid copyright and (2)
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`copying of the original elements of the copyrighted work. Infogroup, Inc. v. Database LLC, 956
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`F.3d 1063, 1066 (8th Cir. 2020).
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`Grover Gaming alleged in the complaint that it owns the copyright in the audiovisual work
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`contained in Fusion 4 and registered that work with the U.S. Copyright Office. [ECF No. 1, ¶ 28]
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`4 While Banilla’s dismissal of its only claim forecloses its possibility of a cost and fee award, Grover
`Gaming also seeks an award under the Copyright Act.
`7
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`Grover Gaming also alleged Defendant displayed a pirated or “hacked” version of the Fusion 4
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`game at his business, and that the game contained unauthorized public displays and performances
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`of Grover Gaming’s copyrighted audiovisual effects. [ECF No. 1, ¶¶ 44-45]. Taking the allegations
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`in the complaint as true, Grover Gaming has satisfied the two requirements for a claim of copyright
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`infringement, and is entitled to default judgment against Defendant on Count I.
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`2. Statutory Damages
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`Grover Gaming has elected to seek statutory damages under the Copyright Act.5 [ECF No.
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`23] The Act provides for statutory damages of “not less than $750 or more than $30,000 as the
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`court considers just” per copyright. 17 U.S.C. § 504(c)(1). The Court can award statutory damages
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`up to $150,000 per copyright for willful infringements. 17 U.S.C. § 504(c)(2). “The Copyright Act
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`does not define ‘willful,’ however, federal courts have determined that willfulness may be based on
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`actual or constructive knowledge of the infringement, or reckless disregard of a copyright holder’s
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`rights.” Cards Against Humanity, LLC v. Skkye Enterprises, 4:16-CV-1534 AGF, 2017 WL
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`3671020, at *3 (E.D. Mo. Aug. 9, 2017). See also RCA/Ariola Intern., Inc. v. Thomas & Grayston
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`Co., 845 F.2d 773, 779 (8th Cir. 1988) (“[I]n the context of copyright law, willfulness entails
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`knowledge that an act constitutes an infringement, rather than mere purposeful performance of an
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`action without knowledge of whether it is an infringement[.]”) (citing M. Nimmer and D. Nimmer,
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`Nimmer on Copyright § 14.04[B][3] (1987)).
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`The Court has “wide discretion in determining the appropriate amount of statutory damages,
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`based on three main factors: (1) ‘the expenses saved and profits reaped by the defendants in
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`connection with the infringements;’ (2) ‘the revenues lost by the plaintiffs as a result of the
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`defendants’ conduct;’ and (3) ‘the infringers’ state of mind whether willful, knowing, or merely
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`innocent.’” Cards Against Humanity, LLC, 2017 WL 3671020, at *3 (quoting W. Coast Prods., Inc.
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`5 Under the Act, an infringer is liable for either the copyright owner’s actual damages and additional profits
`of the infringer or statutory damages. 17 U.S.C. § 504(a).
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`v. Garrett, No. 4:12CV01551 AGF, 2014 WL 752670, at *2 (E.D. Mo. Feb. 25, 2014)). Damages
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`should be “designed to discourage wrongful conduct” and should reflect “the strong public interest
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`in [e]nsuring the integrity of the copyright laws.” Id. (quoting Cass Cty. Music Co. v. C.H.L.R.,
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`Inc., 88 F.3d 635, 643 (8th Cir. 1996) (citation omitted) and Music City Music v. Alfa Foods, Ltd.,
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`616 F. Supp. 1001, 1004 (E.D. Va. 1985)). “Courts generally agree that statutory damages should
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`exceed unpaid licensing fees to emphasize that it costs less to obey the copyright laws than to
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`violate them.” Lorimar Music A. Corp. v. Black Iron Grill Co., No. 09-6067-CV-SJ-FJG, 2010 WL
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`3022962, at *2-3 (W.D. Mo. July 29, 2010).
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`In the renewed motion, Grover Gaming seeks $30,000 in statutory damages contending
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`Defendant’s violation of the Copyright Act was “willful” as evidenced by his “egregious conduct
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`after service of process in this matter[.]” [ECF No. 24, page 12] Specifically, it argues that
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`Defendant’s “disposal” of the machine before contacting Plaintiffs’ counsel to seek a resolution
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`“could certainly imply nefarious intent or even destruction of evidence[.]” [ECF No. 24, page 12]
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`Grover Gaming maintains that Defendant’s refusal to provide it with information regarding
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`Defendant’s purchase and subsequent return of the pirated machine impeded Grover Gaming’s
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`ability to combat further infringement of its intellectual property. [ECF No. 24, page 13] Grover
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`Gaming further contends that Defendant’s “unauthorized disposal of the gaming machine” and his
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`failure to defend himself in the lawsuit rendered it impossible to ascertain precisely how much
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`Defendant profited from the pirated machine. [ECF No. 24, at 12]
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`While Defendant’s lack of cooperation in providing Plaintiffs’ information regarding his
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`purchase and return of the machine cannot be construed as good faith, the Court is not convinced
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`that Defendant’s actions, including his immediate return of the machine following notice of the
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`lawsuit, were “egregious” or “nefarious.”6 The same can be said of the evidence that Defendant
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`6 Again, Plaintiffs attempted to paint Defendant as a shrewd, and potentially disreputable, businessman
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`appears to have received additional gaming consoles from China after initiation of the lawsuit and
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`the presence of other gaming consoles at Defendant’s business as of June 2022. While Grover
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`Gaming suggests that these facts demonstrate Defendant’s lack of respect for copyright laws, there
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`is no evidence before the Court demonstrating that these consoles are pirated or hacked games
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`obtained in violation of anyone’s copyright.
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`While it is not certain how long Defendant displayed the pirated game in his store, the
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`evidence suggests it was a few months, likely between October 2021 and January 2022. Due to the
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`procedural posture of the case, discovery was not conducted and there is no evidence establishing
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`how much Defendant earned from the pirated game. The undisputed evidence, however, is that an
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`authentic Fusion 4 gaming console retails for $9,590. Based on the evidence of the expenses
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`Defendant saved by purchasing a pirated game, Grover Gaming’s approximate lost revenues, and
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`Defendant’s state of mind, the Court concludes that an award of $15,000 is reasonable for
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`Defendant’s infringement.
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`3. Injunctive Relief
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`Grover Gaming is also requesting an injunction prohibiting Defendant’s use of the pirated
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`game. Grover Gaming contends that, due to Defendant’s lack of cooperation, it has been unable to
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`confirm whether the pirated game was actually returned to the supplier. Grover Gaming argues it is
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`entitled to an injunction because it will likely suffer irreparable harm without the injunction, and
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`Defendant will not be harmed by an injunction requiring him to comply with the Copyright Act.
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`The Act permits the Court to grant a permanent injunction “on such terms as it may deem
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`reasonable to prevent or restrain infringement of a copyright.” 17 U.S.C. §502(a). To obtain a
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`permanent injunction, the plaintiff must demonstrate that: (1) it has suffered an irreparable injury;
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`through testimony that Defendant had multiple businesses and outstanding lawsuits. Counsel acknowledged
`at the hearing, however, that he had not definitively tied these businesses to Defendant. Even if there were a
`connection between Defendant and these other businesses and lawsuits, their mere existence does not
`necessarily suggest a willful copyright violation in this case.
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`(2) remedies available at law, such as monetary damages, are inadequate to compensate for that
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`injury; (3) a remedy in equity is warranted, considering the balance of hardships between the
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`plaintiff and defendant; and (4) the public interest would not be disserved by a permanent
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`injunction. Cards Against Humanity, LLC, 2017 WL 3671020, at *6 (quoting eBay Inc. v. Merc
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`Exchange, L.L.C., 547 U.S. 388, 391 (2006). “In copyright cases, irreparable harm is presumed on
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`a showing of a reasonable likelihood of success on the merits[.]” Id. With respect to the public
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`interest, “it is virtually axiomatic that the public interest can only be served by upholding copyright
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`protections and, correspondingly, preventing the misappropriation of the skills, creative energies,
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`and resources which are invested in the protected work.” Id. (quoting Apple Computer, Inc. v.
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`Franklin Computer Corp., 714 F.2d 1240, 1255 (3rd Cir. 1983) (citation omitted)).
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`Due to Defendant’s default, Grover Gaming has established a reasonable likelihood of
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`success on the merits and, therefore, irreparable harm. Because Grover Gaming was unable to
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`independently verify Defendant’s return of the pirated gaming console, there is a risk of future
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`infringement by Defendant and monetary damages alone are inadequate. See Olan Mills, Inc. v.
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`Linn Photo Co., 23 F.3d 1345 (8th Cir. 1994) (“When a copyright owner has established a threat of
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`continuing infringement, the owner is entitled to an injunction regardless of registration.”)
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`Furthermore, the hardship to Grover Gaming resulting from the infringement and the possibility of
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`continued infringement outweighs any burden to Defendant from being enjoined from continuing
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`his infringement. Finally, the public interest would be served by granting Grover Gaming a
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`permanent injunction to prevent further misappropriation of its work. The Court has reviewed the
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`permanent injunction proposed by Grover Gaming and believes it is appropriate; accordingly, it
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`will be entered as set forth below.
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`4. Costs and Attorney’s Fees
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`11
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`Grover Gaming seeks reimbursement under the Copyright Act of $2,357.00 in “costs and
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`expenses” and $51,760.50 in attorney’s fees it incurred in connection with the suit. [ECF Nos. 23,
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`39-1].
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`Under the Act, the Court “in its discretion may allow the recovery of full costs by or against
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`any party” and may “award a reasonable attorney’s fee to the prevailing party as part of the costs.”
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`17 U.S.C. § 505. Typically, a party may recover only those “costs” codified in the general “costs”
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`statutes, 28 U.S.C. §§ 1821, 1920. Rimini Street, Inc. v. Oracle USA, Inc., 139 S. Ct. 873, 877-78
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`(2019). In addition to reimbursement for witnesses’ “[p]er diem and mileage” expenses under 28
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`U.S.C § 1821, a court may tax as costs the following:
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`(1) Fees of the clerk and marshal;
`(2) Fees for printed or electronically recorded transcripts necessarily obtained for
`use in the case;
`(3) Fees and disbursements for printing and witnesses;
`(4) Fees for exemplification and the costs of making copies of any materials where
`the copies are necessarily obtained for use in the case;
`(5) Docket fees under section 1923 of this title;
`(6) Compensation of court appointed experts, compensation of interpreters, and
`salaries, fees, expenses, and costs of special interpretation services under section
`1828 of this title.
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`28 U.S.C. § 1920.
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`Grover Gaming requests reimbursement of $2,357 for its “total out of pocket costs and
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`expenses” incurred during the course of the litigation, including filing fees ($402), investigation
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`expenses ($1,595), legal research expenses ($110), and special process server fees ($250). Of these
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`expenses, the only cost recoverable under Sections 1821 and 1920 is $402 for the Clerk’s filing
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`fee.7 The $110 legal research expenses, while not recoverable as a cost under Sections 1821 and
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`1920, are “reasonable out-of-pocket expenses of the kind normally charged to clients by attorneys”
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`and can be included as part of the reasonable attorney’s fees awarded, as discussed in further detail
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`7 While fees of the marshal are recoverable, fees paid to a special process server are not. Crues v.
`KFC Corp., 768 F.2d 230, 234 (8th Cir. 1985).
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`12
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`

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`Case: 4:21-cv-01505-PLC Doc. #: 40 Filed: 10/07/22 Page: 13 of 19 PageID #: 244
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`below. See Pinkham v. Camex, Inc., 84 F.3d 292, 294-95 (8th Cir. 1996). Because many of the
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`expenses sought by Grover Gaming are not recoverable under the relevant statutes, the Court grants
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`Grover Gaming’s request for reimbursement of the $402 filing fee and $110 in legal research
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`expenses, and denies its request for recovery of the remaining “out of pocket costs and expenses.”
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`The sole exception to the statutory limitations on costs is attorney’s fees, which the
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`Copyright Act expressly authorizes a court to award as “costs.” 17 U.S.C. § 505. Section 505 grants
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`courts “broad leeway” in awarding attorney’s fees. Kirtsaeng v. John Wiley & Sons, Inc., 579 U.S.
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`197, 202 (2016). The courts may not “‘award[ ] attorney’s fees as a matter of course’; rather, a
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`court must make a more particularized, case-by-case assessment.” Id. (quoting Fogerty v. Fantasy,
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`Inc., 510 U.S. 517, 533(1994)). In deciding whether to make an award, the Court considers the
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`objective reasonableness of a party’s litigation position, “frivolousness, motivation,…
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`compensation[,] and deterrence.” Designworks Homes, Inc. v. Thomson Sailors Homes, L.L.C., 9
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`F.4th 961, 964 (8th Cir. 2021) (quotations omitted).
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`The Act requires that any fee award be granted to a prevailing party and that the amount be
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`reasonable. 17 U.S.C. § 505. Reasonable fees under the Act are determined using the “lodestar,”
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`which is calculated by multiplying a reasonable hourly rate by the number of hours reasonably
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`expended in the litigation. Pinkham, 84 F.3d at 294; Hensley v. Eckerhart, 461 U.S. 424, 433
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`(1983). The lodestar “provides an objective basis on which to make an initial estimate of the value
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`of a lawyer’s services.” Hensley, 461 U.S. at 433. “The party seeking an award of fees should
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`submit evidence supporting the hours worked and rates claimed.” Id; see also Pinkham, 84 F.3d at
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`293-94 (in the plaintiff’s motion for attorney’s fees, counsel attested to their trial experience, range
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`of individual billing rates, total number of hours at each rate, and the novelty and number of issues
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`involved). The court may reduce the award where the documentation of hours is inadequate. Id.
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`13
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`Case: 4:21-cv-01505-PLC Doc. #: 40 Filed: 10/07/22 Page: 14 of 19 PageID #: 245
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`
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`In the renewed motion for default judgment, Grover Gaming sought reimbursement for
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`$45,688 in attorney’s fees based on “hourly rates rang[ing] from $350.00 per hour to $525.00 per
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`hour and the hours billed are 64.2.”8 [ECF No. 23, 24-6] Plaintiffs’ counsel’s supplemental
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`declaration in support of the request did not provide any details on the total number of hours at each
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`rate or how many hours were spent on specific tasks.9
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`At the July 20, 2022 hearing, the Court informed counsel that the record was “deficient,
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`particularly in the area of the attorneys’ fees” and that the affidavit filed in support was “vague and
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`lacking in detail.”10 (Tr. 4) The Court advised counsel that, in support of a fee request, an attorney
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`typically provides the Court with a “summary document” which “breaks down…the amount of
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`time that was spent on any given…event and the amount of money that they’re charging for it.”
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`(Tr. 4) Counsel agreed to file “something…that would have breakdowns of the… nature of the
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`work and the amount of fees for the different stages of the work[.]” (Tr. 5-6)
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`During the hearing, Plaintiffs’ counsel testified that he is a partner at the law firm of
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`Spencer Fane and has been licensed to practice law for 27 years. (Tr. 29) Counsel was primarily
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`responsible for handling the day-to-day activities of the case, including the filing of the complaint
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`and all interactions with Defendant. (Tr. 29-30) Counsel met with Defendant twice during the
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`pendency of the case, each meeting lasting between 30 and 60 minutes. (Tr. 30-31) Due to
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`Defendant’s unrepresented status, counsel took additional steps to ensure Defendant received
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`copies of the filings and was aware of all relevant dates and deadlines. (Tr. 31)
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`8 These figures were subsequently amended.
`9 The supplemental declaration provides only a general description of the work performed, stating
`that 64.2 hours were collectively spent on tasks such as communicating with Defendant and preparing the
`documents filed in the case.
`10 The Court also noted there were some discrepancies in Plaintiffs’ filings regarding the hours
`worked and the amount of attorney’s fees incurred. Specifically, it appeared that the number of hours billed
`as represented in the renewed motion and the supplemental declaration filed by counsel were incorrect
`because the average hourly rate exceeded the range set forth and the information conflicted with that
`contained in the first motion for default judgment. [ECF No. 12, 13-6]
`14
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`Case: 4:21-cv-01505-PLC Doc. #: 40 Filed: 10/07/22 Page: 15 of 19 PageID #: 246
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`
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`Counsel stated the case was not a typical default situation where minimal work was
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`performed and that the firm invested significant resources to the case. (Tr. 37-38) This included
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`spending “a lot of [energy] really trying to determine where [Defendant] got th