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Batiste v. Lewis

United States District Court, E.D. Louisiana

September 6, 2019

PAUL BATISTE d/b/a ARTANG PUBLISHING, LLC, a Louisiana Limited Liability Company

         SECTION: “F” (4)



         Before the Court is Defendants' Motion for Attorneys' Fees (R. Doc. 145). The issue of attorneys' fees and costs was referred to the undersigned, to submit proposed findings and recommendations for disposition pursuant to Title 28 U.S.C. §§ 636(b)(1)(B) and (C), 1915e (2), and 1915A, and as applicable, Title 42 U.S.C. §§ 1997e (c)(1) and (2). See R. Doc. 146. The motion is opposed. R. Doc. 149. The motion was heard on the briefs.[1]

         I. Factual Summary

         This copyright infringement case was filed by Paul Batiste (“Batiste”), a New Orleans jazz musician who is the founding member and owner of Artang Publishing, LLC and the Batiste Brothers Band. Id. at p. 2. Defendants Ryan Lewis and Ben Haggerty are a famous hip-hop duo known as Macklemore and Ryan Lewis, who have achieved international success for their singles Thrift Shop and Can't Hold Us. Id. Defendants have also received several Grammy awards, including those for best new artist, best album, and best rap performance, for their single Thrift Shop. Id.

         Plaintiff alleged that Defendants willfully infringed on his copyrights by using unauthorized samples and copying elements of eleven of Plaintiff's original songs in the composition of Thrift Shop, Can't Hold Us, Need to Know, Same Love, and Neon Cathedral. Id. Plaintiff also sued several others credited with writing the songs, as well as the publishing companies who own the rights to the compositions. Id. Plaintiff alleged, inter alia, that he was entitled to actual damages and Defendants' profits in connection with the infringed copy-righted songs. R. Doc. 40 at p. 13-22.

         After dealing with contentious discovery, Defendants filed a Motion for Summary Judgment (R. Doc. 140), which the District Judge subsequently granted in its entirety. Specifically, the Court found that there was no evidence to suggest that Defendants had factually copied any of Batiste's musical compositions or sound recordings. R. Doc. 140. The Court further held, in comparing the songs with recordings, that Plaintiff failed to demonstrate “striking similarity” or any instance of sampling with respect to the twelve song pairings identified in his complaint. As such, the Second Amended Complaint was dismissed with prejudice. R. Doc. 144.

         Defendants now seek fees and expenses they incurred and submit that such relief is warranted because Plaintiff's claims were objectively baseless and unreasonable from the outset; both Plaintiff and his counsel engaged in egregious misconduct including, among other things, Plaintiff failed to provide even the most basic responses to Defendants' requests for discovery, despite an Order from the undersigned; Plaintiff failed to comply with an Order directing payment of Defendants' attorneys' fees for discovery misconduct; Plaintiff failed to personally appear for depositions that Plaintiff's counsel noticed in Seattle, Washington; and as Plaintiff submitted a fraudulent “expert report” prepared in its entirety by Batiste. Defendants contend that, as a prevailing party in this Copyright Act case, the Court has the discretion to award them attorneys' fees and costs pursuant to 28 U.S.C. § 1927, and therefore seek an award of $145, 594.50 and $3, 764.26 in reasonable attorneys' fees and costs, as well as seeking an estimated $5, 000.00 to $10, 000.00 in additional attorneys' fees and costs associated with this motion and reply. R. Doc. 145-1.

         Plaintiff opposes the motion contending that the award of attorneys' fees is not automatic, but rather that it is subject to the Court's discretion. R. Doc. 148. Plaintiff contends that Defendants' request for attorneys' fees is “severely misplaced” and constitutes a collection of mischaracterizations and baseless claims. Id. Plaintiff further contends that while the Court dismissed his claim, there is no evidence to suggest that the claim was frivolous or brought in bad faith. Id. Albeit Plaintiff acknowledges that there currently is no case in the Fifth Circuit that addresses the burden of proof required to demonstrate “substantial similarity” in a sound recording sampling case and copying claim. Id.

         In setting forth the respective position of the parties, the Court proceeds with its review of the matter. This Court, in exercising its discretion to award attorneys' fees, is of the opinion that Defendants' award of attorneys' fees and costs associated are appropriate in this Copyright infringement case for the reasons set forth in greater detail below.

         II. Standard of Review

         The criteria to be applied in determining the proper amount of fees to be awarded in the Fifth Circuit is articulated in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir.1974). The Court notes that the Fifth Circuit has applied the Johnson factors to copyright infringement cases in previous instances. See, e.g., Micromanipulator Co., Inc. v. Bough, 779 F.2d 255, 259 (5th Cir.1985) (citing Engel v. Teleprompter Corp., 732 F.2d 1238, 1241 (5th Cir. 1984)).

         The Supreme Court has indicated that the “lodestar” calculation is the “most useful starting point” for determining the award of attorneys' fees. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). The lodestar equals “the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.” Id. The lodestar is presumed to yield a reasonable fee. La. Power & Light Co. v. Kellstrom, 50 F.3d 319, 324 (5th Cir. 1995). After determining the lodestar, the Court must then consider the applicability and weight of the twelve factors set forth in Johnson, 488 F.2d at 717-19.[2] The Court can make upward or downward adjustments to the lodestar figure if the Johnson factors warrant such modifications. See Watkins v. Fordice, 7 F.3d 453, 457 (5th Cir. 1993). However, the lodestar should be modified only in exceptional cases. Id.

         After the calculation of the lodestar, the burden then shifts to the party opposing the fee to contest the reasonableness of the hourly rate requested or the reasonableness of the hours expended “by affidavit or brief with sufficient specificity to give fee applicants notice” of the objections. Rode v. Dellarciprete, 892 F.2d 1177, 1183 (3d Cir. 1990).

         III. Analysis

         A. Prevailing Party

         There is no dispute as to whether Defendants are the prevailing parties. The sole item of issue regarding Defendants' entitlement to the award of reasonable attorneys' fees, at least according to Plaintiff, is that there is no proof that his claim was frivolous and objectively unreasonable.

         “Underpinning any award of attorneys' fees is ‘the goal of vindicating the overriding purpose of the Copyright Act: to encourage the production of original literary, artistic, and musical expression for the public good.'” See Lotus Dev. Corp. v. Borland Int'l, Inc., 140 F.3d 70, 73 (1st Cir.1998). Plaintiffs' argument as to Defendants' not meeting their threshold burden showing as to attorneys' fees in a Copyright Act case falls flat where, as in here, a “showing of frivolity or bad faith is not required; rather, the prevailing party need only show that its opponent's copyright claims or defenses were ‘objectively weak.'” Latin Am. Music Co. v. Am. Soc'y of Composers Authors & Publishers, 629 F.3d 262, 263 (1st Cir.2010) (quoting Garcia-Goyco v. Law Envtl. Consultants, Inc., 428 F.3d 14, 20 (1st Cir.2005)).

         In considering the objective weakness in Plaintiff's claims, the Court finds the following procedural history instructive. The series of Plaintiff mishaps and failures in this case initially began with Defendants' filing of a motion to dismiss, which Plaintiff responded to by filing a motion to amend his complaint. R. Docs. 12 & 19. The Defendants reasserted their arguments from their motion to dismiss, and Plaintiff moved for leave to file its Second Amended Complaint, which the undersigned Magistrate Judge ultimately granted. R. Docs. 25, 34, & 39. At some point thereafter, District Judge Martin L. C. Feldman denied Defendants' subsequently filed Second Motion to Dismiss Second Amended Complaint. R. Doc. 58.[3]

         Parties hotly contested discovery matters in this case, but in every dispute Plaintiff's position did not yield success. See, e.g., R. Doc. 89. The Court even had to award reasonable attorneys' fees to Defendants on their Motion to Compel (R. Doc. 81) because Plaintiff lacked a good faith basis for his refusal to produce required documents. R. Docs. 129 & 145-1, p. 5. The award was $3, 554.00, which remains unpaid by either counsel or his client. Id.

         The Court held a discovery conference to address Plaintiff's request to suspend and cancel the deposition of its expert. R. Doc. 97. After consideration of the issue, the Court denied Plaintiff's request and ordered Mr. Archie Milton, Plaintiff's expert, to answer questions regarding Plaintiff's personal contributions to the preparation of his own proffered expert report. Id. Mr. Milton's testimony revealed that the expert report was in fact largely prepared by Plaintiff himself and not the expert as previously represented by Plaintiff and his counsel. Id.[4]

         As a result of this testimony, Defendants filed a motion to exclude Plaintiff's expert's deposition, which District Judge Feldman subsequently granted. R. Doc. 125. Interestingly, and perhaps most daringly, Plaintiff decided to take the contents of Mr. Milton's report, as they were substantially prepared by him, and attempted to submit it in his own name. See R. Doc. 135-5. A few weeks later, on April 29, 2019, the Court dismissed Plaintiff's lawsuit by granting a summary judgment noting that Plaintiff's copyright infringement claim presented no probative evidence to demonstrate that Defendants factually copied any of the music compositions or sound as a matter of law. R. Doc. 144. These case docket filings, hearings, and orders demonstrate the frivolity in Plaintiff's allegations, and, as such, this Court finds that the Batiste's claims are, and continue to be, objectively weak. Accordingly, it is recommended that an award of attorneys' fees is appropriate.

         B. Attorn ...

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