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Fathers & Daughters Nevada, LLC v. Zhang

United States District Court, D. Oregon

June 18, 2018

LINGFU ZHANG, Defendant.

          John Mansfield and Megan Vaniman, Harris Bricken, Attorneys for Plaintiff.

          David H. Madden, Mersenne Law, Attorneys for Defendant.


          Michael H. Simon, District Judge

         Plaintiff Fathers & Daughters Nevada, LLC (“F&D”) sued Defendant Lingfu Zhang (“Zhang”), alleging that Zhang copied and distributed F&D's motion picture Fathers & Daughters through a public BitTorrent network in violation of F&D's exclusive rights under the Copyright Act. The Court granted Zhang's motion for summary judgment, finding that F&D did not present evidence raising a genuine dispute as to any material fact regarding whether F&D was a beneficial owner or legal owner of the relevant exclusive rights in the Fathers & Daughters copyright. Zhang now moves the Court for attorney's fees and costs under Section 505 of the Copyright Act and Rule 68 of the Federal Rules of Civil Procedure. F&D objects, arguing that Zhang is not entitled to attorney's fees under the Copyright Act and thus is not entitled to fees under Rule 68. F&D also objects that if Zhang is entitled to fees, the amount requested is unreasonable. For the reasons discussed below, Zhang's motion is granted in part.


         Section 505 of the Copyright Act provides:

In any civil action under this title, the court in its discretion may allow the recovery of full costs by or against any party other than the United States or an officer thereof. Except as otherwise provided by this title, the court may also award a reasonable attorney's fee to the prevailing party as part of the costs.

17 U.S.C. § 505.

         The U.S. Supreme Court has recognized the “broad leeway” this provision grants district courts in considering fee petitions, noting that the statutory text “eschews any ‘precise rule or formula' for awarding fees.” Kirtsaeng v. John Wiley & Sons, Inc., 136 S.Ct. 1979, 1985 (2016) (quoting Fogerty v. Fantasy, Inc., 510 U.S. 517, 534 (1994)). Nonetheless, the Supreme Court has held that fees should not be granted as a matter of course but should be considered on a case-by-case basis, and that “a court may not treat prevailing plaintiffs and prevailing defendants any differently; defendants should be ‘encouraged to litigate [meritorious copyright defenses] to the same extent that plaintiffs are encouraged to litigate meritorious claims of infringement.'” Id. (quoting Fogerty, 510 U.S. at 527) (alterations in original).

         The Supreme Court also “noted with approval ‘several nonexclusive factors' to inform a court's fee-shifting decisions: ‘frivolousness, motivation, objective unreasonableness[, ] and the need in particular circumstances to advance considerations of compensation and deterrence.'” Id. (quoting Fogerty, 510 U.S. at 534 n.19) (alterations in original). Of these, a court should give substantial weight to the reasonableness or unreasonableness of the underlying litigation positions of the party opposing the fee award, but must still take into account all other relevant factors. Id. at 1989. “[O]bjective reasonableness can be only an important factor in assessing fee applications-not the controlling one.” Id. at 1988. Generally, because there is no explicit limit or condition placed on the district court in Section 505, a district court should consider whether the objective and purpose of the Copyright Act is being furthered by granting the requested fee award. Id. at 1986. “[C]opyright law ultimately serves the purpose of enriching the general public through access to creative works.” Fogerty, 510 U.S. at 527.

         A district court's disposition of a motion for attorney's fees must “provide a reasonably specific explanation for all aspects of a fee determination” in order to allow for “adequate appellate review.” Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 558 (2010). The preferred method of calculating reasonable attorney's fees is the “lodestar” method. Id. at 551-52. This is because “the lodestar method produces an award that roughly approximates the fee that the prevailing attorney would have received if he or she had been representing a paying client who was billed by the hour in a comparable case, ” is “readily administrable, ” and is “objective.” Id. (emphasis in original). Additionally, one purpose of federal fee-shifting statutes is to ensure that a prevailing plaintiff's counsel receive a fee that is “sufficient to induce a capable attorney to undertake the representation of a meritorious . . . case.” Id. at 552. The lodestar method of calculating attorney's fees “yields a fee that is presumptively sufficient to achieve this objective.” Id. Although the lodestar calculation results in a presumptively reasonable fee, this fee may be adjusted in certain circumstances. Id.

         The lodestar amount is the product of the number of hours reasonably spent on the litigation multiplied by a reasonable hourly rate. McCown v. City of Fontana, 565 F.3d 1097, 1102 (9th Cir. 2009).[1] In making this calculation, the district court should take into consideration various factors of reasonableness, including the quality of an attorney's performance, the results obtained, the novelty and complexity of a case, and the special skill and experience of counsel. See Perdue, 559 U.S. at 553-54; Gonzalez v. City of Maywood, 729 F.3d 1196, 1209 n.11 (9th Cir. 2013).

         In determining the number of hours reasonably spent, “the district court should exclude hours ‘that are excessive, redundant, or otherwise unnecessary.'” McCown, 565 F.3d at 1102 (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)). The party seeking an award of attorney's fees “has the burden of submitting billing records to establish that the number of hours it has requested [is] reasonable.” Gonzalez, 729 F.3d at 1202.

         The district court may determine, in one of two ways, whether hours are excessive, redundant, or otherwise unnecessary, and thus excludable. The court may conduct an hour-by-hour analysis of the fee request. Id. at 1203. Alternatively, “when faced with a massive fee application the district court has the authority to make across-the-board percentage cuts either in the number of hours claimed or in the final lodestar figure.” Id. (quoting Gates v. Deukmejian, 987 F.2d 1392, 1399 (9th Cir. 1992) (quotation marks omitted)). “[W]hen a district court decides that a percentage cut (to either the lodestar or the number of hours) is warranted, it must ‘set forth a concise but clear explanation of its reasons for choosing a given percentage reduction.'” Id. (quoting Gates, 987 F.2d at 1400). The Ninth Circuit recognizes one exception to this rule: “‘[T]he district court can impose a small ...

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