Berger

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

FORT LAUDERDALE DIVISION

CASE NO. 25-60602-CIV-DIMITROULEAS/HUNT

NOAH BERGER,

Plaintiff,

vs.

INTERNATIONAL SOMMELIER GUILD

GLOBAL INVESTMENTS, LLC,

Defendant.

_____________________________________/

REPORT AND RECOMMENDATIONS

This matter is before this Court on Plaintiff’s petition for an award for damages and

attorney’s fees. ECF No. 24. The Honorable William P. Dimitrouleas referred this Motion

to the undersigned United States Magistrate Judge. ECF No. 26; see also 28 U.S.C. §

636; S.D. Fla. L.R., Mag. R. Upon thorough and careful review of the Motion, the

response and reply, the applicable law, and being otherwise fully advised in the premises,

the undersigned RECOMMENDS Plaintiff’s Motion be GRANTED IN PART and DENIED

IN PART.

Background

Plaintiff Noah Berger filed this copyright infringement action against Defendant

International Sommelier Guild Global Investments, LLC, on March 28, 2025, for unlawfully

posting Plaintiff’s copyrighted photograph on its website, in violation of 17 U.S.C. § 501

et seq. Defendant did not respond to Plaintiff’s Complaint, the Clerk issued an entry of

default as to the Defendant, and Plaintiff then sought a final default judgment against

Defendant. The Court issued an Order to Show Cause requiring Defendant to respond,

and, after Defendant failed to do so, the Court granted Plaintiff’s Motion as to liability and

damages. Pursuant to 17 U.S.C. § 505, by virtue of obtaining a judgment as to liability

and damages on its claim for copyright infringement, Plaintiff is the prevailing party and

may be entitled to an award of reasonable attorney’s fees and costs. Plaintiff now moves

for reasonable attorneys’ fees and costs.

Legal Standard

“If the admitted facts in the Complaint establish liability, then the Court must

determine the appropriate amount of any damages, including any award of attorneys’ fees

and costs allowed by the applicable statutes.” Suzuki Motor Corp. v. Jiujiang Hison Motor

Boat Mfg. Co., No. 12-20626-CIV-SEITZ, 2012 WL 2873733, at *6 (S.D. Fla. June 29,

2012) (citation omitted).

Discussion

a. Attorney’s Fees and Costs

Under the Copyright Act, “[t]he court may . . . award a reasonable attorney’s fee to

the prevailing party as part of the costs.” 17 U.S.C. § 505. Such fee awards are “subject

to the limitations on such awards set forth in other provisions of Title 17.” Luken v. Int'l

Yacht Council, Ltd., 581 F. Supp. 2d 1226, 1235 (S.D. Fla. 2008). There is no argument

that any of the limitations under Title 17 apply, and the Court independently sees no

reason such an award would be statutorily barred. Fees award under the Copyright Act

are allowed in default judgments. See Broad. Music, Inc. v. Joint Bar & Grill, LLC, No.

12-21209-CIV-LENARD/O’SULLIVAN, 2012 WL 12886426, at *3 (S.D. Fla. Sept. 5,

2012), report and recommendation adopted, No. 12-21209-CIV-LENARD/O’SULLIVAN,

2013 WL 12126004 (S.D. Fla. Jan. 25, 2013).

In determining whether to award fees in a copyright case, the Court must consider

the so-called Fogerty factors outlined in Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994).

Under Fogerty, the Court must consider: (i) whether the action was frivolous; (ii) the

motivation behind the action; (iii) whether the claims were objectively unreasonable, both

in the factual and legal components of the case; and (iv) the need to advance

considerations of compensation and deterrence. See id. at 534 n.19; see also Acosta v.

Mega Media Holdings, Inc., No. 15-21837-CIV-COOKE/TORRES, 2017 WL 11680177,

at *9–12 (S.D. Fla. Mar. 2, 2017) (applying the Fogerty factors to a prevailing party’s fee

request in Copyright Act case), report and recommendation adopted, No. 15-21837-CIV-

COOKE/TORRES, 2017 WL 11680178, at *1 (S.D. Fla. Mar. 28, 2017). “‘Fogerty does

not require the Court to weigh all of these factors’; rather, they serve to guide the Court’s

discretion to award fees within the spirit of the Copyright Act.” Acosta, 2017 WL

11680177, at *8 (quoting Katz v. Chevaldina, 127 F. Supp. 3d 1285, 1297 (S.D. Fla.

2015)). Courts also consider the degree of success obtained. Id.

Here, it does not appear that the action was frivolous nor the claims unreasonable.

Plaintiff sought to protect his intellectual property, and deterrence of such behavior favors

the award. Further, Plaintiff was wholly successful, in that a final default judgment was

entered against Defendant. The Court therefore finds the Fogerty factors support the

award of reasonable attorneys’ fees and costs in this case.

I. Fees

This Court uses the lodestar method to calculate reasonable attorney’s fees,

multiplying a reasonable hourly rate by the number of hours reasonably expended.

Norman v. Hous. Auth. of Montgomery, 836 F.2d 1292, 1299 (11th Cir. 1988). A

reasonable hourly rate for attorney’s fees is determined by evaluating “the prevailing

market rate in the relevant legal community for similar services by lawyers of reasonably

comparable skills, experience, and reputation.” Id. (citing Blum v. Stenson, 465 U.S. 886,

895 (1984)); see also ACLU v. Barnes, 168 F.3d 423, 438 (11th Cir. 1999) (“The

significant disparity in their experience should be reflected in the rates awarded.”); Brown

v. Sch. Bd. of Broward Cty., No. 08-61592-CIV-DIMITROULEAS, 2010 WL 3282584, at

*3 (S.D. Fla. June 30, 2010) (reducing the requested hourly rate).

The movant bears the burden of proving the requested rate is consistent with

prevailing market rates. Norman, 836 F.2d at 1299. In addition to evidence presented

by the movant, “[a] court . . . is itself an expert on the question and may consider its own

knowledge and experience concerning reasonable and proper fees and may form an

independent judgment either with or without the aid of witnesses as to value.” Id. at 1303

(quoting Campbell v. Green, 112 F.2d 143, 144 (5th Cir. 1940)) (internal quotation marks

omitted). Thus, even when the submitted evidence is deficient, a court has the power to

make a fee award without the need of further pleadings or an evidentiary hearing. Id.

Moreover, “[a]n evidentiary hearing is unnecessary for issues about which the

district court possesses sufficient expertise: ‘Such matters might include the

reasonableness of the fee, the reasonableness of the hours, and [the] significance of the

outcome.’” Thompson v. Pharmacy Corp. of Am., 334 F.3d 1242, 1245 (11th Cir. 2003)

(quoting Norman, 826 F.2d at 1309). The primary issues here are the reasonableness of

counsel’s hourly rate and the reasonableness of the number of hours expended, matters

over which this Court possesses sufficient expertise.

A. Reasonable Hourly Rate

Plaintiff seeks attorneys’ fees based upon professional services rendered. When

“determining what is a ‘reasonable’ hourly rate and what number of compensable hours

is ‘reasonable,’” this Court must consider twelve factors. Meyrowitz v. Brendel, No. 16-

81793-CIV-MARRA/MATTHEWMAN, 2018 WL 4440492, at *3 (S.D. Fla. Sept. 17, 2018).

These factors are:

(1) the time and labor required; (2) the novelty and difficulty of the questions;

(3) the skill requisite to perform the legal service properly; (4) the preclusion

of employment by the attorney due to acceptance of the case; (5) the

customary fee; (6) whether the fee is fixed or contingent; (7) time limitations

imposed by the client or the 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.

The reasonable hourly rate is defined as the prevailing market rate in the

relevant legal community for similar services by lawyers of reasonably

comparable skills, experience, and reputation. The fee applicant bears the

burden of establishing the claimed market rate. The Court may use its own

experience in assessing the reasonableness of attorney’s fees.

Id. (internal quotations and citations omitted).

This Court has considered the included affidavits and the twelve factors. Because

of their practice, reputation, and legal experience, counsel request the following hourly

rates:

• Craig Sanders, managing partner, requests a rate of $895.00 per hour.

• Joshua Vera, associate, requests a rate of $400.00 per hour.

• Jonathan Cader, senior associate, requests a rate of $600.00 per hour

• Julie Busch and Arielle Marra, paralegals, request a rate of $150.00 per hour.

Comparable fee awards indicate the proposed rates somewhat higher than rates

previously awarded in the Southern District. See Soc. Life Network, Inc. v. Peak One

Opportunity Fund, L.P., 21-21373-CIV-GAYLES/TORRES, 2023 WL 5053985, at *7 (S.D.

Fla. July 20, 2023), report and recommendation adopted, 21-21373-CIV-

GAYLES/TORRES, 2023 WL 5036606 (S.D. Fla. Aug. 8, 2023) (holding that fees of $700

for a partner and $500 for a senior associate are reasonable); Karpel v. Knauf Gips KG,

No. 21-24168-CIV-SCOLA, 2023 WL 22173, at *2 (S.D. Fla. Jan. 3, 2023) (finding that

attorney rates ranging from $365.00 to $595.00 were reasonable). This Court previously

requested that Plaintiff submit a notice of prior awards of fees and costs in this District.

According to Plaintiff’s response to that request, Vera has recently been awarded his

$400.00 rate, while Sanders’ awards have ranged between $650.00 and $750.00 per

hour. ECF No. 28. Cader has been awarded $450.00 per hour, while the paralegals

awards ranged from $100.00 to $150.00 per hour. Id. In keeping with these awards, as

well as other rates previously awarded in the district, the undersigned recommends some

slight adjustment to counsels’ awards. As such, Vera should be compensated at $400.00

per hour, Sanders at $700.00 per hour, and Cader at $450.00 per hour. The paralegals

awards should be compensated at $125.00 per hour. See Garcia v. Nova Se. Univ., Inc.,

No. 22-60822-CIV-DIMITROULEAS/HUNT, 2023 WL 3792831, at *2 (S.D. Fla. May 18,

2023), report and recommendation adopted, No. 22-60822-CIV-DIMITROULEAS/HUNT,

2023 WL 3790761 (S.D. Fla. June 2, 2023).

Hours Reasonably Expended

Upon determination of the hourly rate, a court must determine the reasonable

number of hours expended in the litigation. Hensley v. Eckerhart, 461 U.S. 424, 433

(1983). Inquiry into the reasonable number of hours focuses on an attorney’s exercise of

“billing judgment,” such as the attorney’s exclusion of hours “that would be unreasonable

to bill a client, and therefore to one’s adversary irrespective of the skill, reputation, or

experience of counsel.” Barnes, 168 F.3d at 428 (quoting Norman, 836 F.2d at 1301)

(internal quotation marks omitted) (emphasis omitted). Fee applicants must exclude

hours that were not “reasonably expended” or that are determined to be “excessive,

redundant, or otherwise unnecessary” from their fee calculations. Hensley, 461 U.S. at

434.

According to Plaintiff’s billing records, Sanders, a partner, spent 0.3 hours working

on the case. ECF No. 25-1. Vera, an associate, spent 10.7 hours on the case. Cader,

a senior associate, spent 3.7 hours on the case. Id. The paralegals collective spent 2.3

hours on the case. Id. Plaintiff is claiming a total of 17 hours spent working on the matter.

The attorneys aver that these hours were spent reviewing records, preparing the

complaint, communicating with their client, and preparing relevant motions. The Court

notes that the bulk of the work was assigned to the associate with the lowest billing rate.

Having examined the docket and the included billing records, the undersigned finds the

number of hours claimed reasonable.

C. Lodestar Amount and Adjustment

“[T]here is a ‘strong presumption’ that the lodestar figure is reasonable, but that

presumption may be overcome in those rare circumstances in which the lodestar does

not adequately take into account a factor that may properly be considered in determining

a reasonable fee.” Perdue v. Kenny A., 559 U.S. 542, 553 (2010). The Supreme Court

has specifically identified three circumstances that may justify a deviation from the

lodestar amount: 1) “where the method used in determining the hourly rate employed in

the lodestar calculation does not adequately measure the attorney’s true market value,

as demonstrated in part during the litigation”; 2) “if the attorney’s performance includes

an extraordinary outlay of expenses and the litigation is exceptionally protracted”; and 3)

when there are “extraordinary circumstances in which an attorney’s performance involves

exceptional delay in the payment of fees.” Id. at 554–56.

In this case, the undersigned finds no reason to depart from the lodestar,

calculation. Therefore, Plaintiff should be awarded $4,280.00 for Vera (10.7 hours at

$400.00 per hour), $210.00 for Sanders (0.3 hours at $700.00 per hour), $1,665.00 for

Cader (3.7 hours at $450.00 per hour), and $287.50 for paralegals (2.3 hours at $125.00

per hour) for a total fees award of $6,442.50.

II. Costs

Plaintiff also seeks to recover from the $405.00 filing fee. Filing fees are routine

expenses in litigation, which the undersigned finds are compensable. See 28 U.S.C. §

1920 (enumerating costs that court may tax). Plaintiffs should therefore be awarded costs

of $405.00.

RECOMMENDATION

For the foregoing reasons, the undersigned respectfully RECOMMENDS that

Plaintiffs’ request for damages and attorney’s fees, ECF No. 24, be GRANTED IN PART

and DENIED IN PART. The Motion should be granted to the extent that Plaintiff be

awarded $6,442.50 in fees, as well as $405.00 in costs, for a total award of $6,847.50.

The Motion should otherwise be DENIED.

Within fourteen (14) days after being served with a copy of this Report and

Recommendation, any party may serve and file written objections to any of the above

findings and recommendations as provided by the Local Rules for this district. 28 U.S.C.

§ 636(b)(1); S.D. Fla. Mag. R. 4(b). The parties are hereby notified that a failure to timely

object waives the right to challenge on appeal the district court’s order based on

unobjected-to factual and legal conclusions contained in this Report and

Recommendation. 11th Cir. R. 3-1 (2016); see Thomas v. Arn, 474 U.S. 140 (1985).

DONE and SUBMITTED at Fort Lauderdale, Florida, this 17th day of July 2026.

PATRICK M. HUNT

UNITED STATES MAGISTRATE JUDGE

Copies furnished to:

The Honorable William P. Dimitrouleas

All counsel of record