Simpleville Music v. Mizell

511 F.Supp.2d 1158

SIMPLEVILLE MUSIC, et al., Plaintiffs, v. H. Jack MIZELL, Defendant.

Civil Action No. 1:04cv393-MHT.

United States District Court, M.D. Alabama, Southern Division.

February 13, 2007.

COPYRIGHT MATERIAL OMITTED

Dylan Cook Black, James William Gewin, Bradley Arant Rose & White LLP, Birmingham, AL, for Plaintiffs.

James M. Parker, James M. Parker, Attorney at Law, Enterprise, AL, Steve G. McGowan, Steve McGowan LLC, Dothan, AL, for Plaintiffs.

OPINION AND ORDER

MYRON H. THOMPSON, District Judge.

The plaintiffs (who are members of the American Society of Composers, Authors and Publishers ("ASCAP") to which they have granted a non-exclusive right to license public performances of their copyrighted musical compositions) brought this lawsuit against defendant H. Jack Mizell, charging that he violated the Copyright Act, 17 U.S.C. §§ 101-1332, by playing ASCAP's copyrighted musical compositions on the radio without authorization. This court entered summary judgment in favor of the plaintiffs and held that Mizell did, in fact, violate the Copyright Act when he broadcasted the plaintiffs' songs without prior authorization. Simpleville Music v. Mizell, 451 F.Supp.2d 1293 (M.D.Ala. 2006) (Thompson, J.).

This cause is now before the court on the plaintiffs' motion for attorneys' fees and expenses. The plaintiffs' motion will be granted to the extent that, of the total request of $ 91,060.56, the court will award $ 56,175.00 in fees and $ 6,826.24 in expenses, for a total of $ 63,001.24.

I. APPELLATE FEES AND EXPENSES

The Copyright Act provides that the court in its discretion may award costs and attorney's fees to the prevailing party. 17 U.S.C. § 505; see also Fogerty v. Fantasy, Inc., 510 U.S. 517, 534, 114 S.Ct. 1023, 127 L.Ed.2d 455 (1994). A portion of the fees requested by the plaintiffs, $ 8,902.70, is for work done in connection with Mizell's appeal of this case. Although § 505 of the Copyright Act allows the prevailing party attorney's fees and expenses for services rendered on appeal, 4-14 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 14.10[E] (2006) ("An award of attorney's fees may be made for services rendered on appeal as well as at the trial level."), a district court is not authorized to award fees and expenses for appellate work. Davidson v. City of Avon Park, 848 F.2d 172, 173 (11th Cir.1988) ("As to fees for services on appeal, we hold that the district court is not authorized ... to control the filing time or assessment of attorney's fees for services rendered on appeal."); Wyatt v. Sawyer, 67 F.Supp.2d 1331, 1346-1347 (M.D.Ala.1999) (Thompson, J.) ("a district court is not authorized to award fees and expenses for appellate work"). Instead, "If a party wishes to obtain fees on appeal, he or she must file a petition with the clerk of [the Eleventh Circuit] within fourteen days of the issuance of the opinion of [that] court." Mills v. Freeman, 118 F.3d 727, 734 (11th Cir. 1997).¹ Consequently, the plaintiffs' request for attorneys' fees and expenses in connection with Mizell's appeal in the amount of $ 8,902.70 is denied.

II. TRIAL FEES AND EXPENSES

The remaining fees and expenses total $ 82,157.86. The plaintiffs contend that they are entitled to their attorneys' fees and expenses because they have prevailed on all of the claims asserted in their motion for summary judgment, and thus they are `prevailing parties' for purposes of a fee award. "Section 505 of the 1976 Copyright Act, 17 U.S.C. § 505, permits the trial court in its discretion to award a reasonable attorney's fee to the prevailing party in a copyright infringement action." Original Appalachian Artworks, Inc. v. Toy Loft, Inc., 684 F.2d 821, 832 (11th Cir.1982).

The starting point in setting any fee award for an attorney is determining the "lodestar" figure — that is, the product of the number of hours reasonably expended to prosecute the lawsuit and the reasonable hourly rate for work performed by similarly situated attorneys in the community. Norman v. Housing Auth. of Montgomery, 836 F.2d 1292, 1299 (11th Cir. 1988). After calculating the lodestar fee, the court should then proceed with an analysis of whether any portion of this fee should be adjusted upwards or downwards. Pennsylvania v. Del. Valley Citizens' Council for Clean Air, 478 U.S. 546, 565-66, 106 S.Ct. 3088, 92 L.Ed.2d 439 (1986).

In determining the lodestar figure and whether it should be adjusted upwards or downwards, the court is guided by the 12 factors set out in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir.1974);² see also Blanchard v Bergeron, 489 U.S. 87, 91-92, 109 S.Ct. 939, 103 L.Ed.2d 67 (1989). These factors are: (1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill required to perform the legal services properly; (4) the preclusion of other employment by the attorney due to acceptance of the case; (5) the customary fee in the community; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the "undesirability" of the case; (11) the, nature and length of the professional relationship with the client; and (12) awards in similar cases. Johnson, 488 F.2d at 717-19.

The fee applicant bears the burden of "establishing entitlement and documenting the appropriate hours and hourly rates." Id. at 1303. This burden includes supplying the court with specific and detailed evidence from which it can determine the reasonable hourly rate; maintaining records to show the time spent on the different claims; and setting out with sufficient particularity the general subject matter of the time expenditures so that the district court can assess the time claimed for each activity. ACLU v. Barnes, 168 F.3d 423, 427 (11th Cir.1999). "A well-prepared fee petition also would include a summary, grouping time entries by the nature of the activity or state of the case." Id. (citation omitted).

A fee applicant should also exercise "billing judgment," id. at 428 (quoting Hensley v. Eckerhart, 461 U.S. 424, 434, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983)), that is, the applicant should "exclude from his fee applications `excessive, redundant, or otherwise unnecessary [hours],' which are hours `that would be unreasonable to bill to a client and therefore to one's adversary irrespective of the skill, reputation, or experience of counsel.'" Id. (citation omitted).

"Those opposing fee applications have obligations, too. In order for [district] courts to carry out their duties in this area, `objections and proof from fee opponents' concerning hours that should be excluded must be specific and `reasonably precise.'" Id. (citation omitted). While Mizell has challenged the plaintiffs' fee request as "patently and clearly excessive," Mizell Resp. Atty. Fees. ¶ 1, he has not identified what hours and rates are improper; he has, in short, offered nothing to help the court in its assessment of the plaintiffs' request. Nevertheless, despite this failing on Mizell's part, the court will use its judgment to decide whether to award attorneys' fees and expenses to the plaintiffs in the amount requested.

A. REASONABLE RATES

To determine whether the hourly rate submitted by the plaintiffs' attorneys is reasonable, the court will consider the customary fee and market rate for the attorneys, in addition to their experience, skill and reputation. See Johnson, 488 F.2d at 718; Norman v. Housing Authority of the City of Montgomery, 836 F.2d 1292, 1299 (11th Cir.1988) ("A reasonable hourly rate is the prevailing market rate in the relevant legal community for similar services by lawyers of reasonably comparable skills, experience, and reputation."). The plaintiffs' counsel seek the following hourly rates:

                                      2004     2005    2006
                                     Hourly   Hourly  Hourly
Attorneys                             Rate     Rate    Rate
James W. Gewin                       $ 365    $ 390   $ 415
Dylan C. Black                       $ 210    $ 235   $ 255
Bradley S. Burleson                   n/a      n/a    $ 175
                                      2004     2005    2006
                                     Hourly   Hourly  Hourly
Legal Assistants                      Rate     Rate    Rate
Terry J. Kelley                       n/a      n/a    $ 155
Cindy Seay                            n/a      n/a    $ 140
Joshua A. Andrews                     n/a      n/a      n/a
Cheryl H. Thompson                  $  75    $  80    $  90

The plaintiffs defend their request on several grounds. First, they argue that the hourly rates charged in this case are the same rates charged in other ASCAP cases handled by counsel's firm. Specifically, they contend that "[w]hat [they] charge[] clients is powerful, and perhaps the best, evidence of [their] market rate," Dillard v. City of Greensboro, 213 F.3d 1347, 1354-55 (11th Cir.2000), and that the plaintiffs' counsel actually billed ASCAP, and ASCAP has already paid, the amount requested for their work in this matter. The plaintiffs also point to Gewin's extensive experience in litigating copyright cases as ASCAP's legal counsel since 1970 and Black's experience as a copyright litigator to explain that they used such high-priced attorneys in an effort to reduce the number of hours required to litigate this matter. They submitted affidavits from two Montgomery attorneys who attest that based on the difficulties inherent in copyright cases, Gewin's and Black's skills and experience, and the requirements of this particular case, their requested rates are reasonable and appropriate.

The court has considered the plaintiffs' evidence demonstrating the experience, reputation and ability of its attorneys. The court also appreciates the experience required to represent plai...