throbber
ORIGINAL
`
`Case 1:21-cv-04291-LLS Document 19 Filed 11/09/21 Page 1 of 17
`· LSDC SD~\'
`DOCU:\ff'.'iT
`EL ECTRO~ ICALLY FILED
`DOC#:
`DATE f-.lL_E_D_:_/ _/ /~-f~/ 2__./ _
`
`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
`-
`-
`-
`-
`-
`-
`-
`-
`-
`-
`-
`-
`-
`-
`-
`ALEX TABAK ,
`
`-
`
`- X
`
`Plaintiff ,
`
`21 CV 04291
`
`(LLS)
`
`-
`
`against -
`
`LIFEDAILY, LLC
`
`Defendant.
`-
`-
`-
`-
`-
`-
`
`- X
`
`DEFAULT JUDGMENT
`
`This matter comes before the Court on plaintiff Alec
`
`Tabak ' s motion for entry of default judgment against defendant
`
`LifeDaily , LLC under Rule 55 (b) (2) of the Federal Rules of
`
`Civil Procedure and Local Rule 55 . 2 . Because the motion seeks
`
`statutory damages , a hearing is not required . Fustok v .
`
`ContiCommodity Services , Inc ., 873 F . 2d 38 , 40 (2d Cir . 1989) .
`
`Upon consideration of all filings in connection with the
`
`motion , as well as all pleadings , the Court rules as follow s:
`
`FACTUAL BACKGROUND
`
`The following facts are drawn from Tabak ' s complaint and
`
`are accepted as true for purposes of this motion .
`
`Tabak is a professional photographer based in New York City
`
`who licenses his photographs for a fee . Compl . ~ 5 . Li feDaily is
`
`a limited liability company organized under Delaware l aw wi t h
`
`its principal place of business in New York City . Id .
`
`~ 6 .
`
`- 1 -
`
`

`

`Case 1:21-cv-04291-LLS Document 19 Filed 11/09/21 Page 2 of 17
`
`LifeDaily owns and operates a website at the URL :
`
`www . lifedaily . com . Id . ~ 7 .
`
`Tabak photographed Verran Madhavan , id. ~ 8 , and registered
`
`two photographs (the " Photographs " ) with the United States
`
`Copyright Office . Id . ~ 11 . The copyright became effective on
`
`June 23 , 2017 . Id . On May 26 , 2017 , Tabak licensed the
`
`Photographs to an online media source , which published them with
`
`a " gutter credit " identifying Tabak as the creator of the works.
`
`Id . ~ 9 . Later , LifeDaily ran an article on its website
`
`featuring the Photographs . Id . ~ 13 . LifeDaily did not license
`
`the Photographs from Tabak and , furthermore , removed Tabak 's
`
`gutter credit in its republication . Id . ~ ~ 13 , 15 .
`
`PROCEDURAL BACKGROUND
`
`Tabak filed a complaint in this Court on May 12, 2021 ,
`
`alleging LifeDaily had infringed on Tabak ' s copyright and
`
`violated the Digital Millennium Copyright Act .
`
`Id . ~~ 9 , 27 .
`
`LifeDaily was served with process on May 14 , 2021 but has failed
`
`to answer or move against the complaint . Dkt . No . 8 . On August
`
`10 , 2021 , the Clerk entered a Certificate of Default . Dkt . No .
`
`13 . Tabak filed an application for entry of default judgment on
`
`September 16 , 2021 seeking $2 , 500 . 00 in statutory damages under
`
`17 U. S.C . § 504(c) ; $5 , 000 . 00 in statutory damages under 17
`
`U. S . C. § 1202(b) (3 ) ; $595.00 in attorneys ' fees and $440 . 00 in
`
`costs under 17 U. S . C. § 505; and for such further relief as this
`
`-
`
`2
`
`-
`
`

`

`Case 1:21-cv-04291-LLS Document 19 Filed 11/09/21 Page 3 of 17
`
`Court deems just and proper .
`
`DISCUSSION
`
`A . Jurisdiction
`
`These claims arise under the Copyright Act , 17 U. S . C . §
`
`501 , and the Digital Millennium Copyright Act
`
`(DMCA) , 17 U.S . C .
`
`§ 1202(b) (3) . This Court accordingly has subject matter
`
`jurisdiction pursuant to 28 U. S . C . §§ 1331 , 1338 . The complaint
`
`also is supported by well - pled allegations as to personal
`
`jurisdiction , such as LifeDaily is headquartered and transacts
`
`business in New York City . Compl . ~~ 3 , 6 . Thus , this Court has
`
`personal jurisdiction over LifeDaily .
`
`B. Liability
`
`A defendant who defaults admits to all " well - pleaded "
`
`factual allegations contained in the complaint . City of New
`
`York v. Mickalis Pawn Shop , LLC , 645 F . 3d 114 , 137 (2d Cir .
`
`2011). A party in default does not admit to conclusions o f
`
`law .
`
`In re Indus. Diamonds Antitrust Litig ., 119 F . Supp . 2d 418 ,
`
`420
`
`(S . D. N. Y. 2000). The district court must determine whether
`
`a plaintiff ' s allegations establish a defendant ' s liabili t y as
`
`a matter of law . Id . Tabak presents two claims for this Court ' s
`
`evalution : copyright infringement and violation of the DMCA .
`
`1 . Copyright Act
`
`" To establish infringement ,
`
`two elements must be
`
`-
`
`3 -
`
`

`

`Case 1:21-cv-04291-LLS Document 19 Filed 11/09/21 Page 4 of 17
`
`proven :
`
`(1) ownership of a valid copyright , and (2) copying
`
`of constituent elements of the work that are original ."
`
`Feist Publ ' ns , Inc . v . Rural Tel . Serv . Co ., Inc ., 499 U. S .
`
`340 , 361 (1991). A certificate of timely copyright
`
`registration serves as prima facie evidence of ownership of
`
`a valid copyright . Scholz Design , Inc . v . Sard Custom
`
`Homes , LLC , 691 F . 3d 182 , 186 (2d Cir . 2012) .
`
`To be original , a work must be independently created
`
`by the author and possess "' at least some minimal degree of
`
`creativity .'" Id . (quoting Feist Publ ' ns , Inc ., 499 U. S . at
`
`345) . In a photograph , elements of originality and
`
`creativity " may include posing the subjects , lighting ,
`
`angle , selection of film and camera , evoking the desired
`
`expression , and almost any other variant involved ." Rogers
`
`v . Koons , 960 F . 2d 301 , 307 (2d Cir . 1992) . The original
`
`elements of a work will be considered " copied " if two works
`
`are so " strikingly similar as to preclude the possibility
`
`of independent creation ." Lipton v . Nature Co ., 71 F . 3d
`
`464 , 471 (2d Cir . 1995) .
`
`The factual allegations set forth in the complaint ,
`
`taken as true , establish LifeDaily ' s liability under the
`
`Copyright Act . Tabak alleges he has a timely copyright to
`
`the Photographs . Compl . ~~ 10-12 , Ex . C . An image of the
`
`- 4 -
`
`

`

`Case 1:21-cv-04291-LLS Document 19 Filed 11/09/21 Page 5 of 17
`
`Photographs, attached to the complaint as Ex . A., and an
`
`image of the Photographs used on LifeDaily ' s website ,
`
`attached to the complaint as Ex . E , are identical , down to
`
`the lighting and angle of the subject . These allegations
`
`are sufficient to state a claim of copyright infringement
`
`upon which relief can be granted .
`
`2. Digital Millennium Copyright Act
`
`Tabak fails to establish liability under the DMCA . To
`
`establish a DMCA claim pursuant to 17 U. S . C . § 1202 (b) ( 3) ,
`
`a plaintiff must adequately allege :
`
`(1) the existence of CMI [copyright management
`information] in connection with a copyrighted
`work ; and (2) that a defendant " distribute[d]
`works [or] copies of works ";
`(3) while "knowing
`that [CMI] has been removed or altered without
`authority of the copyright owner or the law "; and
`(4) while " knowing , or . .. having reasonable
`grounds to know " that such distribution " will
`induce , enable , facilitate , or conceal an
`infringement ."
`
`Mango v. BuzzFeed , Inc ., 970 F . 3d 167 , 171 (2d Cir . 2020)
`(quoting § 1202 (b) (3)) .
`
`Here , LifeDaily published the Photographs without the
`
`corresponding gutter credit , the CMI , which was featured in
`
`Tabak ' s initial publication of the works . Compl . ~~ 9 , 16 .
`
`To allege the next requirement , knowing removal of the CMI
`
`without the owner ' s consent , Tabak pleads that " [u]pon
`
`information and belief , in its Infringing Article , Defendant
`
`knowingly removed copyright management information identifying
`
`-
`
`5 -
`
`

`

`Case 1:21-cv-04291-LLS Document 19 Filed 11/09/21 Page 6 of 17
`
`Plaintiff as the owner of the Photographs" without Tabak ' s
`
`knowledge or consent . Compl . !! 24-25. Generally , " conclusory
`
`allegations based on information and belief are insufficient to
`
`support a finding of default - based liability ." Flanagan v . N.
`
`Star Concrete Const ., Inc ., No . 13 - CV- 2300 , 2014 WL 4954615 , at
`
`*6 (E . D. N. Y. Oct. 2 , 2014) ; see Oceanic Trading Corp . v . Vessel
`
`Diana , 423 F.2d 1 , 4 (2d Cir . 1970) (reopening a default
`
`judgment that was based upon representations made on information
`
`and belief) .
`
`However , Tabak ' s allegations are not conclusory . Tabak knew
`
`that he did not grant LifeDaily authority to remove the gutter
`
`credit , the CMI , from the Photographs. It can thus be properly
`
`inferred that LifeDaily knew it did not have Tabak ' s approval
`
`when it removed the CMI . Thus , even though Tabak pleads upon
`
`information and belief , it is deemed admitted and true for
`
`purposes of this motion that LifeDaily knowingly removed the CMI
`
`without Tabak ' s authority .
`
`The same cannot be said for the final condition(cid:173)
`
`defendant knows that distribution without the CMI would
`
`conceal an infringement . The complaint alleges that the
`
`"alteration and/or removal of said copyright management
`
`information was made by Defendant with reasonable grounds
`
`to know that its conduct would induce , enable , facilitate ,
`
`or conceal its infringement of Plaintiff ' s copyright in the
`
`-
`
`6 -
`
`

`

`Case 1:21-cv-04291-LLS Document 19 Filed 11/09/21 Page 7 of 17
`
`Photographs. " Compl . ~ 26 . No additional factual averments
`
`are provided .
`
`As such , Tabak ' s complaint lacks the necessary factual
`
`detail to support a finding that LifeDaily violated the
`
`DMCA . Although a defendant admits to every "well - pleaded
`
`allegation" in the complaint upon default , allegations that
`
`" are not susceptible of proof by legitimate evidence " are
`
`not well - pleaded . Trans World Airlines ,
`
`I nc . v . Hughes , 449
`
`F . 2d 51 (2d Cir . 1971 ), judgment rev ' d on other grounds ,
`
`409 U.S. 363 (1973). Where a plaintiff , such as here ,
`
`merely repeats the statutory language under DMCA and fails
`
`to provide sufficient facts or evidence for the Court to
`
`infer defendant ' s scienter , the complaint fails to meet the
`
`necessary pleading threshold for a default judgment to be
`
`entered. See , e . g ., Dixon v. Int'l Unified Workforce , Inc .,
`
`No . 18-CV- 7191 , 2020 WL 6140054 , at *3
`
`(E . D. N. Y. Sept. 1 ,
`
`2020) (finding plaintiffs had insufficiently pled
`
`enterprise liability in FLSA action where they merely
`
`repeated the statutory language and pled upon information
`
`and belief) ; Payamps v . M & M Convenience Deli & Grocery
`
`Corp ., No . 16 - CV- 4895 , 2018 WL 3742696 , at *6 (E . D. N. Y. May
`
`18 , 2018) (collecting cases) , report and recommendation
`
`adopted , Order (Mar . 31 , 2020) . This finding is bolstered
`
`by the fact that Tabak did not yet have a valid copyright
`
`-
`
`7
`
`-
`
`

`

`Case 1:21-cv-04291-LLS Document 19 Filed 11/09/21 Page 8 of 17
`
`registration when LifeDaily allegedly removed the CMI and
`
`published the Photographs in violation of the DMCA .
`
`The second claim for violation of the DMCA is
`
`dismissed .
`
`C. Default Judgment Under Rule 55
`
`If a court is satisfied that the complaint states a claim
`
`upon which relief can be granted , default judgment may be
`
`entered .
`
`See Au Bon Pain Corp . v . Artect, Inc ., 653 F . 2d 61 ,
`
`65 (2d Cir . 1981). Even though " [s]trong public policy favors
`
`resolving disputes on the merits ," Arn . Alliance Ins. Co. v .
`
`Eagle Ins . Co ., 92 F . 3d 57 , 61 (2d Cir . 1996) , the decision to
`
`grant a motion for default judgment lies within the trial
`
`court ' s discretion .
`
`See Pecarsky v . Galaxiworld . com ,
`
`Ltd ., 249 F.3d 167 , 170-71 (2d Cir . 2001) " When determining
`
`whether to grant a motion for default judgment , courts in this
`
`district consider three factors :
`
`(1) whether the defendant ' s
`
`default was willful ;
`
`(2) whether defendant has a meritorious
`
`defense to plaintiff ' s claims ; and (3) the level of prejudice
`
`the non - defaulting party would suffer as a result of the
`
`denial of the motion for default judgment ." Santana v . Latino
`
`Express Restaurants , Inc ., 198 F. Supp. 3d 285 , 291
`
`(S . D. N. Y.
`
`2016) ; see Pecarsky , 249 F . 3d at 170-71 .
`
`First , to find that a defendant ' s default was willful
`
`"requires [finding] something more than mere negligence ." New
`
`- 8 -
`
`

`

`Case 1:21-cv-04291-LLS Document 19 Filed 11/09/21 Page 9 of 17
`
`York v . Green , 420 F.3d 99 , 108 (2d Cir . 2005) . Rather , it
`
`requires a finding of "egregious or deliberate conduct ," like
`
`making the "strategic decision to default . " Am . All . Ins . Co .
`
`v. Eagle Ins. Co ., 92 F . 3d 57 , 60
`
`(2d Cir . 1996) .
`
`Here , LifeDaily received notice of this motion but failed
`
`to file any opposition to Tabak's application for default
`
`judgment. Neither did it file an answer or Rule 12(b) (6) motion
`
`or otherwise appear before this Court at any time . LifeDaily ' s
`
`default can be considered strategic and thus is willful.
`
`Second , this Court is unable to evaluate any "meritorious
`
`defense ," as LifeDaily failed to "answer or otherwise respond to
`
`the complaint, weighing in favor of default judgment. "
`
`New York by James v . Debt Resolve , Inc ., No . 18-CV-09812 , 2021
`
`WL 12 0 0 21 7 , at * 2
`
`( S. D. N. Y. Feb . 4 , 2 0 21) .
`
`Third , Tabak would be severely prejudiced by the denial of
`
`this motion because he will have " ' no additional steps available
`
`to secure relief '" from LifeDaily . Id. at *3 (quoting Bridge Oil
`
`Ltd . v . Emerald Reefer Lines , LLC , No . 06 - CV- 14226 , 2008 WL
`
`5560868 , at *2
`
`(S . D. N. Y. Oct . 27 , 2008)).
`
`Therefore , default judgment is granted for the Copyright
`
`Act claim pursuant to Fed . R . Civ . P. 55(b) (2).
`
`D. Damages
`
`1 . Statutory Damages Under the Copyright Act
`
`-
`
`9 -
`
`

`

`Case 1:21-cv-04291-LLS Document 19 Filed 11/09/21 Page 10 of 17
`
`Tabak seeks an award of $2 , 500 in statutory damages under
`
`the Copyright Act . A copyright holder may elect to recover
`
`statutory damages for each infringed work " in a sum of not less
`
`than $750 or more than $30 , 000 as the court considers just ." 17
`
`U. S . C . § 504(c) . A plaintiff will be barred from recovering
`
`statutory damages and attorney ' s fees if a defendant engages in
`
`an infringing act prior to the effective date of plaintiff ' s
`
`copyright registration unless the registration is made " within
`
`three months after the first publication of the work ." 17
`
`U. S . C . § 412(2) . Tabak initially published the Photographs on
`
`May 26 , 2017 and the registration subsequently became effective
`
`less than three months later on June 23 , 2017 .
`
`Tabak ' s copyright infringement claims thus qualify for
`
`statutory damages .
`
`In exercising discretion to determine the amount of
`
`statutory damages for a Copyright Act violation , courts
`
`consider six factors :
`
`( 1) the infringer ' s state of mind ,
`( 2) the expenses
`saved , and profits earned , by the infringer ;
`( 3) the
`revenue lost by the copyright holder ;
`(4) the deterrent
`effect on the infringer and third parties ;
`( 5) the
`infringer ' s cooperation in providing evidence
`concerning the value of the infringing material ; and
`(6) the conduct and attitude of the parties .
`
`Bryant v . Media Right Products , Inc ., 603 F . 3d 135 , 144 (2d Cir .
`
`2010) .
`
`A willful state of mind supports a substantial statutory
`
`- 10 -
`
`

`

`Case 1:21-cv-04291-LLS Document 19 Filed 11/09/21 Page 11 of 17
`
`damages award . See , e . g ., Farrington v . Sell It Soc ., LLC , No .
`
`18 CIV . 11696 , 2020 WL 7629453 , at *l (S . D. N.Y . Dec . 21 , 2020)
`
`A willful infringement may be inferred from the defendant ' s
`
`default . See , e . g ., id .
`
`(" [C]ourts in this circuit have
`
`consistently found that trademark and copyright infringement
`
`may be deemed willful by virtue of a defendant ' s default ,
`
`without a further showing by the plaintiff ." ) ; Idir v . La Calle
`
`TV , LLC , No . 19 Civ . 6251 , 2020 WL 4016425 , at *2
`
`(S . D. N. Y.
`
`July 15 , 2020)
`
`(same) ; Innovation Ventures , LLC v . Ultimate One
`
`Distrib. Corp ., No . 12 Civ. 5354 , 2017 WL 10088143 , at *5
`
`(E . D. N. Y. Mar. 21 , 2017)
`
`(same) . But see Verch v. Blockchain
`
`Techs . Corp ., No . 20 - CV- 2631 , 2021 WL 1198784 , at *2
`
`(S . D. N. Y.
`
`Mar . 30 , 2021)
`
`(holding default does not show willfulness) . The
`
`claim of willfulness is further bolstered by the fact that
`
`LifeDaily " operates in the publishing industry and is presumed
`
`to have knowledge of copyright law " and " by [the] act at issue
`
`here , namely Defendant ' s removal of Plaintiff ' s gutter credit
`
`when Defendant republished the photograph[s] on its website ."
`
`Farrington , 2020 WL 7629453 , at *l .
`
`"[LifeDaily] ' s default also supports a finding as to the
`
`fifth factor-that Defendant did not ' cooperat[e] in providing
`
`evidence concerning the value of the infringing material .'" Id .
`
`at *2 .
`
`However , the remaining factors weigh against a substantial
`
`- 11 -
`
`

`

`Case 1:21-cv-04291-LLS Document 19 Filed 11/09/21 Page 12 of 17
`
`statutory damages award . For the second , third , and sixth
`
`factors , Tabak has not put forth any evidence . Although Tabak
`
`need not prove actual damages , he has submitted no evidence
`
`that he lost revenue (no evidence of lost licensing fees) nor
`
`that LifeDaily profited from the infringement . See id .
`
`For the deterrence factor (fourth factor) , Tabak merely
`
`alleges that copyright protections secure intellectual property
`
`rights and deter future infringements . That is a truism ; this
`
`factor looks to a relationship between the amount awarded and
`
`the degree of deterrence . A substantial damages award could
`
`deter defendants from a business practice of adopting their
`
`photographers ' work product as their own , but Tabak has not
`
`made allegations specific to LifeDaily nor any claims that
`
`LifeDaily is a serial copyright infringer . See Verch , 2021 WL
`
`1198784 , at *2 (holding the deterrence factor weighed against a
`
`substantial statutory damages award when plaintiff only alleged
`
`that he " seeks statutory damages as a deterrent to willful
`
`infringers" and , furthermore , failed to allege how defendant is
`
`" a serial copyright infringer , or that it continues to infringe
`
`copyrights in spite of repeated notices of infringement " ) .
`
`Courts in this Circuit have typically awarded statutory
`
`damages between $1 , 000 and $5 , 000 in cases of single use
`
`copyright infringement , such as this one . See , e . g ., id .
`
`(awarding $2 , 000) ; Farrington , 2020 WL 7629453 , at *2
`
`(" The
`
`- 12 -
`
`

`

`Case 1:21-cv-04291-LLS Document 19 Filed 11/09/21 Page 13 of 17
`
`Court normally would consider an award of $1 , 000 for a single
`
`copyright infringement like this one appropriate to sufficiently
`
`promote the goals of deterrence that the Copyright Act is
`
`designed to protect. " ) ; Verch v . Sea Breeze Syrups , Inc ., 2020
`
`WL 7407939 , at *4
`
`(E.D.N . Y. Aug . 20 , 2020)
`
`(awarding $1,000)
`
`In consideration of the factors and guided by the
`
`calculations of other courts in this Circuit , this Court
`
`concludes Tabak is entitled to a statutory damages award of
`
`$2,500 for LifeDaily ' s infringement of the two Photographs .
`
`2 . Attorney's Fees
`
`Pursuant to 17 USC§ 505 of the Copyright Act , courts may
`
`award attorney ' s fees in cases of willful copyright
`
`infringement . See e . g ., Kepner - Tregoe , Inc. v . Vroom , 186 F . 3d
`
`283, 289 (2d Cir . 1999) ; Hounddog Prods ., L . L . C . v . Empire Film
`
`Grp ., Inc. , 826 F . Supp. 2d 619 , 634
`
`(S . D. N.Y . 2011) .
`
`"When determining whether to award attorneys' fees
`[under 17 U. S . C . § 505] , district courts may consider
`such factors as (1) the frivolousness of the non(cid:173)
`prevailing party ' s claims or defenses ;
`(2) the party's
`motivation ;
`(3) whether the claims or defenses were
`objectively unreasonable ; and (4) compensation and
`deterrence . .. . The third factor-objective
`unreasonableness-should be given substantial weight ."
`
`Bryant , 603 F . 3d at 144 .
`
`Here , by failing to answer the complaint , LifeDaily did not
`
`assert any defenses , frivolous or otherwise . Additionally ,
`
`Tabak ' s claims were not objectively unreasonable. Both findings
`
`- 13 -
`
`

`

`Case 1:21-cv-04291-LLS Document 19 Filed 11/09/21 Page 14 of 17
`
`weigh in favor of awarding attorney ' s fees .
`
`Further , " [a]n award of attorneys ' fees to a p l aintiff in
`
`a copyright action is generally appropriate where the defendant
`
`has defaulted ." McGlynn , 2020 WL 6561658 , at *4 ; see also
`
`Lucerne Textiles , Inc . v . H. C.T . Textiles Co ., No . 12 CIV .
`
`5456 , 2013 WL 174226 , at *5
`
`(S . D. N. Y. Jan . 17 , 2013) , report
`
`and recommendation adopted , No . 12 CV 5456 , 2013 WL 1234911
`
`(S . D. N. Y. Mar . 26 , 2013)
`
`(" [D]efault weighs in favor of
`
`awarding attorneys ' fees and costs under 17 U. S . C . § 505 ." ) ;
`
`All-Star Mktg. Grp ., LLC v . Media Brands Co ., 775 F . Supp. 2d
`
`613 , 628
`
`(S . D.N . Y. 2011)
`
`(awarding plaintiff reasonable
`
`attorney ' s fees in a copyright infringement case where
`
`defendant defaulted) . Tabak is thus entitled to attorney ' s
`
`fees .
`
`The court must next ensure that the award is reasonable .
`
`Farrington , 2020 WL 7629453 , at *3 . A presumptively reasonable
`
`rate is the lodestar , the " product of a reasonable hourly rate
`
`and the reasonable number of hours required by the case ."
`
`Millea v . Metro - N. R . Co ., 658 F . 3d 154 , 166 (2d Cir . 2011) ;
`
`see Hensley v . Eckerhart , 461 U. S . 424 , 433 (1983) . To
`
`determine a reasonable hourly rate , courts compare the market
`
`rates for " similar services by lawyers of r easonably comparable
`
`skill , experience , and reputation. " Gierlinger v . Gleason , 160
`
`F . 3d 858 , 882 (2d Cir . 1998) .
`
`- 14 -
`
`

`

`Case 1:21-cv-04291-LLS Document 19 Filed 11/09/21 Page 15 of 17
`
`An hourly rate of $350 is reasonable for Tabak ' s attorney ,
`
`Mr. Freeman. See Mango , 397 F . Supp . 3d at 376 (" [T]he Court
`
`finds that $350 per hour is an appropriate rate for Freeman ' s
`
`hours ." ) .
`
`When determining the reasonableness of the hours expended
`
`on the case , courts consider whether , "at the time the work was
`
`performed , a reasonable attorney would have engaged in similar
`
`time expenditures ." Grant v . Martinez , 973 F . 2d 96 , 99 (2d Cir .
`
`1992) . The plaintiff , as the party seeking attorney ' s fees ,
`
`bears the burden of demonstrating that his request is
`
`reasonable by submitting contemporaneous time records that
`
`"specify , for each attorney , the date , the hours expended , and
`
`the nature of the work done ." N. Y. State Ass ' n for Retarded
`
`Children , Inc . v. Carey , 711 F . 2d 1136 , 1148 (2d Cir . 1983) .
`
`In support of his application for attorney ' s fees , Tabak ' s
`
`counsel has submitted a sworn declaration summarizing in a
`
`chart the services rendered , the hours expended per task , and
`
`the date on which each task was performed . 0kt. 15 . The chart
`
`reveals that Tabak ' s counsel worked 1 . 7 hours total reviewing
`
`the case file , drafting the complaint , requesting the Clerk ' s
`
`Entry of Default , and writing the motion for default judgment .
`
`Without passing on whether the amount of time allotted to each
`
`task was reasonable , the aggregate 1 . 7 hours expended is
`
`reasonable . Accordingly , the Court grants Tabak ' s application
`
`- 15 -
`
`

`

`Case 1:21-cv-04291-LLS Document 19 Filed 11/09/21 Page 16 of 17
`
`for $595 in attorney ' s fees .
`
`3. Costs and Post-Judgement Interest
`
`Under Section 505 , the prevailing party can recover costs.
`
`Tabak seeks to recover $440 in costs to reimburse this Court ' s
`
`$400 filing fee and a $40 fee for service of process . 0kt . 15 ~
`
`17. A plaintiff seeking to recover cost is required to submit
`
`bills or receipts of claimed expenses . James v . Nat ' l R . R .
`
`Passenger Corp ., 02 - Cv- 3915 , 2005 WL 6182322 at *20
`
`(S . D. N. Y.
`
`Mar . 30 , 2005) . However , if a plaintiff , like Tabak here , fails
`
`to submit the required documentation , the Court may take
`
`judicial notice of the court filing fee . McGlynn , 2020 WL
`
`6561658 , at *12 ; Whitehead v . Mix Unit , LLC , 17 - cv- 9476 , 2019
`
`WL 384446 , at *6 (S . D.N . Y. Jan . 31 , 2019)
`
`(taking judicial
`
`notice of court filing fee but denying other costs for lack of
`
`sufficient documentation) . Therefore , Tabak is awarded $400 for
`
`the filing fee but is denied the requested costs for service of
`
`process .
`
`"The Court must award post - judgment interest on any money
`
`judgment recovered in a civil case ," measured "' from the date
`
`of the entry of the judgment , at a rate equal to the weekly
`
`average 1 - year constant maturity Treasury yield .
`
`. for the
`
`calendar week preceding the date of the judgment ,' ' computed
`
`daily to the date of payment ' and ' compounded annually .'" Rovio
`
`Ent ., Ltd . v . Allstar Vending , Inc ., 97 F. Supp . 3d 536, 546
`
`- 16 -
`
`

`

`Case 1:21-cv-04291-LLS Document 19 Filed 11/09/21 Page 17 of 17
`
`(S . D. N. Y. 2015)
`
`(quoting 28 U. S . C . § 196l(a) - (b)) . Thus , Taak
`
`is entitled to post - judgment interest calculated in the above
`
`manner .
`
`ORDER OF JUDGMENT
`
`Defendant LifeDaily , LLC shall pay to Plaintiff Alex Tabak
`
`$2 , 500 in statutory damages for violating the Copyright Act ,
`
`$595 in attorney ' s fees , and $400 in costs .
`
`Defendants LifeDaily , LLC shall pay to Plaintiff Alex Tabak
`
`post - judgment interest on the above amounts at a rate equal to
`
`the weekly average 1 - year constant maturity Treasury y i eld for
`
`the calendar week preceding the date of the judgment , computed
`
`daily to the date of payment and compounded annually .
`
`IT IS SO ORDERED .
`
`Louis L . Stanton
`(U . S . D. J . )
`
`- 17 -
`
`

This document is available on Docket Alarm but you must sign up to view it.


Or .

Accessing this document will incur an additional charge of $.

After purchase, you can access this document again without charge.

Accept $ Charge
throbber

Still Working On It

This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.

Give it another minute or two to complete, and then try the refresh button.

throbber

A few More Minutes ... Still Working

It can take up to 5 minutes for us to download a document if the court servers are running slowly.

Thank you for your continued patience.

This document could not be displayed.

We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.

Your account does not support viewing this document.

You need a Paid Account to view this document. Click here to change your account type.

Your account does not support viewing this document.

Set your membership status to view this document.

With a Docket Alarm membership, you'll get a whole lot more, including:

  • Up-to-date information for this case.
  • Email alerts whenever there is an update.
  • Full text search for other cases.
  • Get email alerts whenever a new case matches your search.

Become a Member

One Moment Please

The filing “” is large (MB) and is being downloaded.

Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.

Your document is on its way!

If you do not receive the document in five minutes, contact support at support@docketalarm.com.

Sealed Document

We are unable to display this document, it may be under a court ordered seal.

If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.


Access Government Site

We are redirecting you
to a mobile optimized page.





Document Unreadable or Corrupt

Refresh this Document
Go to the Docket

We are unable to display this document.

Refresh this Document
Go to the Docket