Dan Pronman v. Brian Styles ( 2017 )


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  •              Case: 16-12157    Date Filed: 01/18/2017    Page: 1 of 9
    [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    ________________________
    No. 16-12157
    Non-Argument Calendar
    ________________________
    D.C. Docket No. 9:12-cv-80674-KAM
    DAN PRONMAN,
    an individual,
    GARY PRONMAN,
    an individual,
    Plaintiffs-Counter
    Defendants-Appellants,
    MOVIE STAR MUSCLECARS, Inc.,
    a Foreign Corporation,
    Plaintiff-Counter
    Defendant,
    versus
    BRIAN STYLES,
    SAMANTHA STYLES,
    SAMANTHA STYLES,
    as Trustee of the Samantha Styles Revocable Trust,
    Defendants-Counter Claimants
    -Counter Defendants-Appellees,
    Case: 16-12157     Date Filed: 01/18/2017    Page: 2 of 9
    MR. JEFFREY S. GRUBMAN,
    Defendant-Appellee.
    ________________________
    Appeal from the United States District Court
    for the Southern District of Florida
    ________________________
    (January 18, 2017)
    Before TJOFLAT, HULL and WILSON, Circuit Judges.
    PER CURIAM:
    Dan and Gary Pronman (collectively, the “Plaintiffs”), pro se litigants,
    appeal the district court’s granting Brian Styles (“B. Styles”), Samantha Styles
    (“S. Styles”), and S. Styles in her capacity as trustee for the S. Styles revocable
    trust (collectively, the “Defendants”) $13,961.16 in attorney’s fees incurred while
    defending against the Plaintiffs’ copyright infringement claim. On appeal, the
    Plaintiffs’ argue that district court abused its discretion in deciding to award the
    Defendants attorney’s fees because their copyright claim had merit. They also
    argue that the district court abused its discretion in determining the amount of the
    fee award the Defendants received.
    The law of the case doctrine likely bars the Plaintiffs from challenging the
    decision to award attorney fees on the copyright claim. But even assuming that the
    law of the case doctrine is inapplicable here, the district court did not abuse its
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    discretion in awarding attorney’s fees to the Defendants. The Plaintiffs raised their
    copyright claim seeking millions of dollars in statutory and actual damages even
    though they produced no evidence of any actual damages and statutory damages
    were plainly unavailable. In addition, the district court did not abuse its discretion
    in determining the amount of attorney’s fees because it represented a permissible
    choice in a range of options from which the court could freely choose.
    Accordingly, we affirm.
    I.
    We review the district court’s decision regarding an award of attorney’s fees
    for abuse of discretion. See Clark v. Hous. Auth. of the City of Alma, 
    971 F.2d 723
    , 728 (11th Cir. 1992). An abuse of discretion occurs where the district court
    fails to apply the proper legal standard, fails to follow proper procedures in making
    its determination, or bases an award upon clearly erroneous findings of fact. Gray
    ex rel. Alexander v. Bostic, 
    613 F.3d 1035
    , 1039 (11th Cir. 2010). This standard
    usually implies a range of choices, and we will affirm even if we may have decided
    the matter the other way. 
    Id. We liberally
    construe pro se pleadings.
    Tannenbaum v. United States, 
    148 F.3d 1262
    , 1263 (11th Cir. 1998).
    Under the Copyright Act, the court may award reasonable attorney’s fees to
    the prevailing party. 17 U.S.C. § 505. To determine whether a fee should be
    granted, the district court must weigh the relevant factors and exercise its
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    discretion. MiTek Holdings, Inc. v. Arce Eng’g Co., 
    198 F.3d 840
    , 842 (11th Cir.
    1999). These factors include frivolousness, motivation, objective
    unreasonableness (both in the factual and legal components of the case), and the
    need in particular circumstances to advance considerations of compensation and
    deterrence. 
    Id. We only
    apply these factors when they are faithful to the purposes
    of the Copyright Act and are applied to prevailing plaintiffs and defendants in an
    even-handed manner. 
    Id. Assuming the
    plaintiff proves copyright infringement, the plaintiff may
    recover either his “actual damages and any additional profits of the infringer” or
    statutory damages of (1) up to $30,000 per work, or (2) up to $150,000 per work if
    the infringement was willful. 17 U.S.C. § 504(a)–(c). To prove actual damages,
    the plaintiff must “demonstrate a ‘causal connection’ between the defendant’s
    infringement and an injury to the market value of the plaintiff’s copyrighted work
    at the time of infringement.” Montgomery v. Noga, 
    168 F.3d 1282
    , 1294 (11th Cir.
    1999). This injury is usually “measured by the revenue that the plaintiff lost as a
    result of the infringement.” 
    Id. at 1295
    n.19. With respect to profits, the plaintiff
    must show a causal relationship between the infringement and profits and present
    proof of the infringer’s gross revenue. See 17 U.S.C. § 504(b); 
    Montgomery, 168 F.3d at 1296
    . No award of statutory damages is permitted where any infringement
    of a copyright commenced after first publication of the work and before the
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    effective date of its registration, unless such registration is made within three
    months after the first publication of the work. See 17 U.S.C. § 412.
    The law of the case doctrine, self-imposed by the courts, operates to create
    efficiency, finality, and obedience within the judicial system. United States v.
    Tamayo, 
    80 F.3d 1514
    , 1520 (11th Cir. 1996). An appellate decision binds all
    subsequent proceedings in the same case not only as to explicit rulings, but also as
    to issues decided necessarily by implication on the prior appeal. 
    Id. In Burger
    King Corp. v. Pilgrim’s Pride Corp., we held that our earlier
    decision awarding attorney’s fees incurred on appeal to the prevailing party in a
    trademark case was law of the case that prevented the losing party from
    challenging the district court’s authority to award attorney fees in the case. Burger
    King Corp. v. Pilgrim’s Pride Corp., 
    15 F.3d 166
    , 168 (11th Cir. 1994). In Burger
    King, the district court held a jury trial on the trademark claim and the jury ruled in
    favor of the plaintiff. 
    Id. In its
    final judgment, the district court ruled that the
    plaintiff was entitled to attorney fees. 
    Id. The defendant
    appealed before the
    district court determined the amount of fees, and we affirmed without opinion. 
    Id. We also
    granted the plaintiff’s petition for appellate attorney’s fees and remanded
    the case for a determination of the amount of the fee award. 
    Id. Upon remand,
    the
    district court determined the amount of attorney’s fees, and the defendant appealed
    again, challenging the propriety of the award, not the amount. 
    Id. at 168.
    Upon
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    appeal for a second time, we held that our earlier decision necessarily decided that
    the plaintiff was entitled to fees, such that that law of the case doctrine applied. 
    Id. at 169.
    As an initial matter, it appears that the law of the case doctrine bars the
    plaintiffs from challenging on appeal the ruling regarding entitlement to attorney
    fees for the copyright claim. But even assuming arguendo that the law of the case
    doctrine does not apply, the district court did not abuse its discretion in awarding
    attorney’s fees to the Defendants. Here, the Plaintiffs claimed $150,000 per
    photograph in statutory damages. They were clearly not entitled to these damages
    because any infringement occurred years before they obtained registration for their
    copyright. See 17 U.S.C. § 412. Furthermore, despite requesting $8,000,000 in
    damages, the Plaintiffs offered no evidence to support an award of actual damages.
    The Plaintiffs failed to provide any evidence whatsoever demonstrating lost
    revenue for the photographs, profits to the Defendants from using the photographs,
    or that the alleged infringement impaired the value of their photographs. See 17
    U.S.C. § 504(a)–(c); 
    Montgomery, 168 F.3d at 1296
    . Despite the inability to
    receive any damages through their copyright claim, the Plaintiffs still raised it and
    consequently clouded title to property owned by S. Styles. Thus, the factors
    supported a fee award to the Defendants, and were applied consistently with the
    goals of the Copyright Act. See MiTek Holdings, 
    Inc., 198 F.3d at 842
    . Therefore,
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    the district court did not abuse its discretion in awarding the Plaintiffs attorney’s
    fees.
    II.
    Section 505 of the Copyright Act contains only two requirements for
    awarding attorneys’ fees: (1) the fees must be awarded to the prevailing party, and
    (2) the amount of fees awarded must be reasonable. See 17 U.S.C. § 505. In
    determining the reasonableness of a fee, we consider the following factors:
    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 other employment by the attorney due to the
    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
    “undesireability” of the case; 11) the nature and length of the
    professional relationship with the client; and 12) awards in similar
    cases.
    Cable/Home Commc’n Corp. v. Network Prods., Inc., 
    902 F.2d 829
    , 853 n.37 (11th
    Cir. 1990). A showing of bad faith or frivolity is not a precondition to awarding
    attorney’s fees. 
    Id. at 853.
    When a district court finds the number of hours claimed is unreasonably
    high, the court has two choices: it may conduct an hour-by-hour analysis, or it may
    reduce the requested hours with an across-the-board cut. Bivins v. Wrap It Up,
    Inc., 
    548 F.3d 1348
    , 1350 (11th Cir. 2008).
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    In Fox v. Vice, the Supreme Court held that a defendant could receive fees as
    a prevailing party for frivolous claims brought under 42 U.S.C. § 1988 even if the
    plaintiff also raised non-frivolous claims. Fox v. Vice, 
    563 U.S. 826
    , 834–35
    (2011). A defendant may not obtain compensation for work unrelated to a
    frivolous claim, and the district court is required to determine whether the
    requested fees would have accrued but for the frivolous claims. 
    Id. at 835-36.
    “The dispositive question is not whether attorney costs at all relate to a non-
    frivolous claim, but whether the costs would have been incurred in the absence of
    the frivolous allegation.” 
    Id. at 838.
    The purpose of fee shifting under 42 U.S.C.
    § 1988 is to relieve defendants of the burdens associated with fending off frivolous
    litigation. 
    Id. at 836.
    The district court did not abuse its discretion in setting the fee amount
    awarded to the Defendants for costs incurred in defending against the Plaintiffs’
    copyright claim. As an initial matter, the Plaintiffs’ assertion that Fox v. Vice
    should guide the determination of the amount of the fee award is unavailing. Fox
    v. Vice governs the award of fees within the context of claims brought under 42
    U.S.C. § 1988, for which the purpose of fee shifting is to relieve defendants of the
    burdens associated with fending off frivolous litigation. 
    Id. In this
    case, fee
    shifting for the Plaintiffs’ copyright claim need not be based on a showing of
    frivolity of bad faith. See MiTek Holdings, 
    Inc., 198 F.3d at 842
    . Moreover, the
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    district court’s decision to compensate the Defendants for attorney’s fees based on
    invoices that did not specifically mention the copyright claim was not an abuse of
    discretion because it represented an interpretation of “reasonable” fees under the
    Copyright Act. See 
    Bostic, 613 F.3d at 1039
    . The Defendants clearly incurred a
    portion of their attorney’s fees defending against the copyright claim, which
    focused on the publication of the Plaintiffs’ photographs, whereas the other claims
    specifically pertained to the Plaintiffs’ trademarks and website. While the district
    court was not required to award compensation in this manner, its decision
    represented one choice in a range of permissible options from which it was free to
    choose. 
    Id. AFFIRMED. 9