Dawes-Ordonez v. Realtor Assoc. of Greater Fr. Lauderdale, Inc.

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT COURT OF APPEALS
U.S.
________________________ ELEVENTH CIRCUIT
MARCH 17, 2011
No. 10-14799 JOHN LEY
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 0:09-cv-60335-JIC
LIZZETTE DAWES-ORDONEZ,
Plaintiff - Appellant,
versus
MARY FORMAN, et al.,
Defendants,
REALTOR ASSOCIATION OF GREATER
FORT LAUDERDALE, INC.,
Defendant - Appellee,
MEREDITH DICAROLIS,
REVIER REAL ESTATE CORP.,
Third Party Defendants.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(March 17, 2011)
Before TJOFLAT, PRYOR and ANDERSON, Circuit Judges.
PER CURIAM:
Lizzette Dawes-Ordonez appeals the award of attorney’s fees to the Realtor
Association of Greater Fort Lauderdale, Inc., which prevailed against her
complaint of copyright infringement. The district court granted summary
judgment in favor of the Association and granted its motion for attorney’s fees on
the ground that Dawes-Ordonez had sued the Association without providing notice
of its alleged infringement. We affirm. Because we find this appeal frivolous, we
also grant the motion of the Association to impose sanctions against Dawes-
Ordonez under Federal Rule of Appellate Procedure 38, and remand with
instructions to determine a reasonable fee for the Association.
The Copyright Act grants the district court the power to award a “reasonable
attorney’s fee to the prevailing party.” 17 U.S.C. § 505. Attorney’s fees “are to be
awarded . . . only as a matter of the court’s discretion.” Fogerty v. Fantasy, Inc.,
510 U.S. 517, 534, 114 S. Ct. 1023, 1033 (1994). When the district court weighs
2
the factors that the Court in Fogerty recommended should “guide courts’
discretion,” id. at 534 n.19, 114 S. Ct. at 1033 n.19, “‘we will not question the
court’s decision to grant or deny fees absent an abuse of that discretion.’” MiTek
Holdings, Inc. v. Arce Eng’g Co., Inc., 198 F.3d 840, 842 (11th Cir. 1999)
(quoting Montgomery v. Noga, 168 F.3d 1282, 1303 (11th Cir. 1999)). An abuse
of discretion occurs if the district court makes a finding of fact that is clearly
erroneous or commits a clear error of judgment. Gray ex rel. Alexander v. Bostic,
613 F.3d 1035, 1039 (11th Cir. 2010). We consider whether the award of
attorney’s fees “further[s] . . . the policies of the law that are being enforced, as
informed by the court’s familiarity with the matter in litigation and the interest of
justice.’” Cable/Home Commc’n Corp. v. Network Prods., Inc., 902 F.2d 829, 854
(11th Cir. 1990) (quoting Casella v. Morris, 820 F.2d 362, 367 (11th Cir. 1987)).
Dawes-Ordonez sued the Association for allegedly infringing a copyright
Dawes-Ordonez held for photographs of a residence that she had licensed a realtor
to disseminate through a multiple listing service owned by the Association. The
district court granted summary judgment in favor of the Association and ruled that
Dawes-Ordonez had “constructively delivered” her photographs to the Association
and “intended that the [p]hotographs be distributed by” the Association. Dawes-
Ordonez does not challenge the summary judgment in favor of the Association.
3
The district court did not abuse its discretion when it awarded attorney’s
fees to the Association. The district court ruled that Dawes-Ordonez’s decision to
sue before giving notice to the Association of its alleged infringement was
“objectively unreasonable” and “demonstrate[d] a questionable subjective
motivation.” The district court was entitled to question Dawes-Ordonez’s motive
in refusing to notify the Association after she had notified the realtors and real
estate company that also participated in the alleged infringement. The district
court also awarded fees to “deter copyright holders from filing such suits without
first attempting to resolve the matter outside of court.” The purposes of the
copyright laws are served only when parties “litigate meritorious” arguments.
Fogerty, 510 U.S. at 527, 114 S. Ct. at 1030. See also MiTek, 198 F.3d at 842–43.
When a complaint of infringement is without merit, the district court may consider
deterrence, Fogerty, 510 U.S. at 534 n.19, 114 S. Ct. at 1033 n.19, in the exercise
of its discretion to award fees.
The Association has requested that we impose sanctions against Dawes-
Ordonez for pursuing a frivolous appeal. Fed. R. App. P. 38. Rule 38 provides
that, “[i]f a court of appeals determines that an appeal is frivolous, it may, after a
separately filed motion or notice from the court and reasonable opportunity to
respond, award just damages and single or double costs to the appellee.” Because
4
Dawes-Ordonez’s challenge to the award of attorney’s fees is entirely without
merit, we award to the Association double costs and reasonable attorney’s fees
incurred as a result of this appeal. We remand this action to the district court with
instructions to determine the amount of attorney’s fees reasonably incurred by the
Association and assess that amount against Dawes-Ordonez.
We AFFIRM the award of attorney’s fees to the Association, we AWARD
SANCTIONS to the Association under Rule 38, and we REMAND with
instructions to determine a reasonable fee for the defense of this appeal.
5