noting that, although objective reasonableness is “an important factor in assessing fee applications,” it is not, standing alone, “controlling”
How later courts described this case
- noting that, although objective reasonableness is “an important factor in assessing fee applications,” it is not, standing alone, “controlling”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 20-10810-RGS
JONATHAN MONSARRAT
v.
RON NEWMAN
MEMORANDUM AND ORDER ON
DEFENDANT’S MOTION FOR AN
AWARD OF ATTORNEY’S FEES
February 26, 2021
STEARNS, D.J.
Defendant Ron Newman, having prevailed in this copyright
infringement and defamation action, moves for an award of attorney’s fees
pursuant to Fed. R. Civ. P. 54(d)(2), and 17 U.S.C. § 505. For the following
reasons, the court will ALLOW IN PART and DENY IN PART the motion.
DISCUSSION
“The Copyright Act allows a district court, in its discretion, to ‘award a
reasonable attorney’s fee to the prevailing party’ in a copyright-infringement
case.” T-Peg, Inc. v. Vermont Timber Works, Inc., 669 F.3d 59, 61 (1st Cir.
2012) (quoting 17 U.S.C. § 505). The Supreme Court has identified several
“‘nonexclusive factors’ that courts should consider in making awards of
attorney’s fees under § 505, provided that ‘such factors are faithful to the
purposes of the Copyright Act and are applied to prevailing plaintiffs and
defendants in an evenhanded manner.’” Small Justice LLC v. Xcentric
Ventures LLC, 873 F.3d 313, 328 (1st Cir. 2017), quoting Fogerty v. Fantasy,
Inc., 510 U.S. 517, 534 n.19 (1994). “These factors include ‘frivolousness,
motivation, objective unreasonableness (both in the factual and in the legal
components of the case) and the need in particular circumstances to advance
considerations of compensation and deterrence.’” Fogerty, 510 U.S. at 534
n.19, quoting Lieb v. Topstone Industries, Inc., 788 F.2d 151, 156 (1986).
By determining that Newman’s entitlement to two affirmative defenses
was clearly established on the face of the Complaint itself, the court
necessarily found that plaintiff Jonathan Monsarrat’s claims were, by any
objective measure, flimsy at best. That does not, however, end the court’s
inquiry. See Kirtsaeng v. John Wiley & Sons, Inc., 136 S. Ct. 1979, 1988
(2016) (noting that, although objective reasonableness is “an important
factor in assessing fee applications,” it is not, standing alone, “controlling”);
cf. Airframe Sys., Inc. v. L-3 Commc’ns Corp., 658 F.3d 100, 109 (1st Cir.
2011) (“[W]hile the Fogerty standard—as interpreted in Garcia-Goyco and
other cases—permits a court to award attorney’s fees when the opposing
party’s claims are objectively weak, it does not require the court to do so. A
district court has discretion to decline to award attorney’s fees even when the
plaintiff’s copyright infringement case is quite weak.” (emphasis in
original)).
Turning to the first and second of the Fogerty factors, the copyright
claim at issue appears to be little more than a gratuitous frill appended to the
Complaint to lever the case into the federal court. The copyrighted work
itself largely repeats the LiveJournal harassment policy, a factual matter that
leaves no plausible argument that the challenged republication effectuated
the same purpose as the underlying post. Newman also makes the obvious
point that, as the individual who originally posted the work on LiveJournal,
Monsarrat was free at any time to remove it from the Dreamwidth website,
with or without Newman’s permission. Because these circumstances
indicate that vindicating the alleged infringement was not one of Monsarrat’s
true motives in pursuing the litigation, the court believes that Monsarrat
filed this action in, at best, questionable good faith.
The assertion of the specific defamation claims raised in this case also
supports a finding of questionable good faith. The statements underlying the
defamation claims were initially posted ten years ago, and Monsarrat already
availed himself of the opportunity to litigate the alleged defamatory content
of these statements in a 2013 suit against Newman that he ultimately
voluntarily dismissed with prejudice. Newman’s counsel, moreover, raised
the issue of immunity under 47 U.S.C. § 230 in response to Monsarrat’s
March 19, 2020 demand letter, and taking into account that Monsarrat’s
counsel had litigated the Small Justice case cited by Newman’s counsel in
that response, Monsarrat could not have been unaware that § 230 would
cover the republication alleged here.
The court further finds evidence of possible improper motivation in
Monsarrat’s motion to strike the exhibits submitted with Newman’s motion
to dismiss. Because the LiveJournal and Dreamwidth posts contained within
those exhibits were explicitly incorporated by reference in the Complaint
(and because the original posts were, in any event, a matter of public record
given the 2013 suit), the court doubts that Monsarrat filed the motion to
strike in good faith or that he could have reasonably believed that he was
entitled to the requested relief.
In sum, given the weakness of Monsarrat’s claims and the court’s
misgivings regarding Monsarrat’s motivation for filing this suit, the court
finds an award of attorney’s fees warranted under § 505. The court is not
convinced, however, that the requested $58,784 is a reasonable sum for a
case that did not proceed past the motion to dismiss stage and for which the
legal grounds had been previously tilled in the 2013 action. The court
accordingly reduces the award to half the amount requested, that is to
$29,382, a sum which the court determines reasonably balances the need to
compensate defendant for successfully defending against a meritless suit and
to deter plaintiff from bringing frivolous actions in the future without
venturing into the realm of what might be thought unnecessarily punitive.
ORDER
For the foregoing reasons, the motion for fees is ALLOWED IN PART
and DENIED IN PART. Newman is entitled to an award of $29,392 in
attorney’s fees.
SO ORDERED.
/s/ Richard G. Stearns____ _____
UNITED STATES DISTRICT JUDGE