Opinion
19 Civ. 00089 (PAE) (GWG)
05-05-2021
DAVID MCGLYNN, Plaintiff, v. TOWERS INVESTORS.COM INC., Defendant.
REPORT & RECOMMENDATION
GABRIEL W. GORENSTEIN, United States Magistrate Judge:
Plaintiff David McGlynn brought this action against Towers Investors.com Inc. (“Towers”) alleging copyright infringement under 17 U.S.C. §§ 106, 501 of the Copyright Act, and removal and/or alteration of copyright management information (“CMI”) under 17 U.S.C. § 1202(b). Towers has defaulted and McGlynn now seeks a default judgment against Towers under Rule 55(b)(2) of the Federal Rules of Civil Procedure. For the reasons stated below, McGlynn should be awarded $5,400 in damages and costs.
Proposed Findings of Fact and Conclusions of Law, filed November 20, 2020 (Docket # 51) (“Prop. Find.”); Declaration of Richard Liebowitz, filed November 20, 2020 (Docket # 52) (“Liebowitz Decl.”).
I. PROCEDURAL BACKGROUND
On January 3, 2019, McGlynn filed the complaint in this action alleging claims of copyright infringement under 17 U.S.C. §§ 106, 501 of the Copyright Act, and removal and/or alteration of CMI under 17 U.S.C. § 1202(b) of the Digital Millennium Copyright Act (“DMCA”). (Docket # 1) (“Comp.”). Towers failed to answer or otherwise appear. There was no activity in the case until May 11, 2019, when McGlynn filed an affidavit of service showing Towers had been served on January 7, 2019. (Docket # 10). On May 23, 2019, District Judge Paul A. Engelmayer issued an order to show cause why the case should not be dismissed for failure to prosecute. (Docket # 11).
On June 17, 2019, McGlynn obtained a clerk's certificate of default (Docket # 14) and filed a motion for default judgment (Docket # 15). Judge Engelmayer scheduled a hearing on McGlynn's motion. See Order, entered June 18, 2019 (Docket # 19). On July 17, 2019, an attorney filed a notice of appearance on behalf of Towers. (Docket # 21). The conference before Judge Engelmayer was adjourned, and Towers was ordered to answer or otherwise move by August 15, 2019. See Order, entered July 18, 2019 (Docket # 23).
Towers' time to respond to the complaint was extended twice (Docket ## 25, 27) but Towers never filed an answer or motion. On September 25, 2019, Towers' attorney filed a motion to withdraw (Docket # 28), which Judge Engelmayer eventually granted (Docket # 32). Judge Engelmayer instructed that Towers, “as a corporation, [could not] continue to defend this lawsuit unless it [found] new counsel.” Order at 1, entered September 26, 2019 (Docket # 29). Judge Engelmayer gave Towers until October 17, 2019, to have an attorney appear on its behalf. Id. No attorney ever did so and McGlynn took no action to advance the case after that.
On July 28, 2020, Judge Engelmayer again ordered McGlynn to show cause why the case should not be dismissed for failure to prosecute. (Docket # 32). After considering McGlynn's response to the order to show cause, Judge Engelmayer gave Towers a new date by which “to obtain new counsel and for that counsel to enter a notice of appearance.” Order, entered August 4, 2020 (Docket # 34). Towers did not appear, and the clerk issued another certificate of default on September 14, 2020 (Docket # 39).
On September 22, 2020, Judge Engelmayer observed that McGlynn's papers “in support of” his motion for default judgment were “in good order” and that if Towers wished to oppose the motion, “its counsel shall enter a notice of appearance prior to October 19, 2020, and file an opposition . . . explaining why a default judgment is not warranted.” (Docket # 46 at *2). Towers did not appear, and Judge Engelmayer ordered that a default be entered against Towers on October 22, 2020 (Docket # 48). The case was thereafter referred to the undersigned for an inquest on damages. (Docket # 49).
On October 23, 2020, this Court issued a scheduling order directing McGlynn to file proposed findings of fact and conclusions of law. (See Docket # 50) (“Scheduling Order”). McGlynn filed proposed findings of fact and conclusions of law on November 20, 2020. See Prop. Find. Towers has not responded.
After McGlynn submitted his proposed findings of fact and conclusions of law, the Court issued an order requiring McGlynn to “either hire a new attorney or appear without an attorney” because his attorney, Richard Liebowitz, had “been suspended from the practice of law in this Court.” Order, entered January 18, 2021 (Docket # 54). A new attorney filed a notice of appearance on behalf of McGlynn on January 19, 2021. (Docket # 56).
II. FINDINGS OF FACT AND CONCLUSIONS OF LAW
In light of Towers' default, McGlynn's properly pleaded allegations in his complaint, except those related to damages, are accepted as true. See, e.g., City of N.Y. v. Mickalis Pawn Shop, LLC, 645 F.3d 114, 137 (2d Cir. 2011) (“It is an ancient common law axiom that a defendant who defaults thereby admits all well-pleaded factual allegations contained in the complaint.”) (punctuation omitted); Finkel v. Romanowicz, 577 F.3d 79, 84 (2d Cir. 2009) (“In light of [defendant's] default, a court is required to accept all . . . factual allegations as true and draw all reasonable inferences in [plaintiff's] favor”). As to damages, “[t]he district court must instead conduct an inquiry in order to ascertain the amount of damages with reasonable certainty.” Credit Lyonnais Sec. (USA), Inc. v. Alcantara, 183 F.3d 151, 155 (2d Cir. 1999). This inquiry requires the district court to: (1) “determin[e] the proper rule for calculating damages on . . . a claim” and (2) “assess[] plaintiff's evidence supporting the damages to be determined under this rule.” Id. The plaintiff bears the burden of establishing its entitlement to the amount sought. See Trs. of Local 813 Ins. Tr. Fund v. Rogan Bros. Sanitation Inc., 2018 WL 1587058, at *5 (S.D.N.Y. Mar. 28, 2018).
Federal Rule of Civil Procedure 55(b)(2) “allows but does not require” the district court to conduct a hearing on the damages amount. Bricklayers and Allied Craftworkers Local 2, Albany, N.Y. Pension Fund v. Moulton Masonry & Constr., LLC, 779 F.3d 182, 189 (2d Cir. 2015) (“[T]he court may conduct such hearings or order such references as it deems necessary and proper.”) (punctuation omitted). Here, the Court's scheduling order notified the parties that the Court may conduct the inquest into damages based upon the written submissions of the parties, but that any party could seek an evidentiary hearing. See Scheduling Order ¶ 3. No party has requested an evidentiary hearing, and we find that a hearing is not necessary.
A. Facts Relating to Liability
McGlynn seeks damages for his copyright infringement and DMCA claims. See Prop. Find. at 3-4. “McGlynn is a professional photographer in the business of licensing his photographs to online and print media for a fee.” Comp. ¶ 5. Towers “is a foreign for profit corporation duly organized and existing under the laws of Delaware, with a place of business” in New York. Id. ¶ 6. Towers “has owned and operated a website at the URL: http://towersinvestors.com (the ‘Website'). . . . The Website is [a] commercial investor website, that also features a Blog which promotes Towers Investors' business, political activity, and point of view.” Id. ¶¶ 6-7.
“On February 25, 2011 the New York Post ran an article that featured” a photograph that McGlynn had taken of Jeffrey Epstein, which McGlynn had “licensed . . . to the New York Post.” Id. ¶¶ 8-9; see Exhibit A to Comp. (“McGlynn Photo”). “The New York Post article featured McGlynn's name in the gutter credit beneath the Photograph.” Id.; see Amber Sutherland, “Billionaire Jeffrey Epstein: I'm a sex offender, not a predator, ” New York Post, February 25, 2011 (annexed as Exhibit B to Comp.) (“Post Art.”). McGlynn “has at all times been the sole owner of all right, title and interest in and to the Photograph.” Comp. ¶ 10.
“A ‘gutter credit' is a notation directly below a photograph or image that identifies the creator of the work.” Mantel v. Smash.com Inc., 2019 WL 5257571, at *1 n.2 (W.D.N.Y. Oct. 17, 2019).
“In or [a]round 2015, Towers . . . ran an article on [its] Website” which “prominently featured the Photograph, ” Comp. ¶ 12, “without the gutter credit, ” id. ¶ 20. See Exhibit D to Comp. (“Towers Art.”). The photograph takes up approximately 20% of the portion of the page that is reproduced. See id. Based on the placement of the righthand drag bar on the screenshot, the post appears to be part of a much longer series of posts placed both before and after the one pertaining to the photograph. See id.
Towers “did not license the Photograph from [McGlynn] for its article, nor did Towers . . . have [McGlynn]'s permission or consent to publish the Photograph on its Website.” Comp. ¶ 13. McGlynn alleges Towers “intentionally and knowingly removed copyright management information identifying” McGlynn, id. ¶ 21, and that the “alteration and/or removal of said copyright management information was made by Towers . . . intentionally, knowingly and with the intent to induce, enable, facilitate, or conceal [its] infringement of [McGlynn]'s copyright, ” id. ¶ 24.
After Towers published the article with the photograph, McGlynn registered the photograph “with the United States Copyright Office and was given registration number VA 2-036-616, ” Comp. ¶ 11; Copyright Registration, annexed as Exhibit C to Comp. The copyright registration has an effective date of March 6, 2017. See Id.
i. Copyright Infringement Claim
To establish a claim of copyright infringement, McGlynn “must show: (i) ownership of a valid copyright; and (ii) unauthorized copying of the copyrighted work.” Jorgensen v. Epic/Sony Records, 351 F.3d 46, 51 (2d Cir. 2003) (citing Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991) and Castle Rock Entm't, Inc. v. Carol Publ'g Group, Inc., 150 F.3d 132, 137 (2d Cir. 1998)).
As to the first element, the Copyright Act provides:
In any judicial proceedings the certificate of a registration made before or within five years after first publication of the work shall constitute prima facie evidence of the validity of the copyright and of the facts stated in the certificate. The evidentiary weight to be accorded the certificate of a registration made thereafter shall be within the discretion of the court.17 U.S.C. § 410(c). Here, McGlynn's photograph was first published on February 25, 2011, see Comp. ¶ 9, and the effective date of the registration is March 6, 2017, see id. ¶ 11. The photograph was therefore registered approximately six years after it was first published.
While the certificate of registration's effective date is six years after the first publication of the photograph, this is an appropriate case in which to exercise “discretion” under § 410(c) to find that the certificate constitutes prima facie evidence of the validity of McGlynn's copyright.
There is no reason to consider McGlynn's claim to copyright suspect in light of the original publication with the gutter credit attributing the photograph to McGlynn and the absence of evidence that McGlynn was not entitled to copyright the photograph. See Yurman Design, Inc. v. Golden Treasure Imports, Inc., 275 F.Supp.2d 506, 515-16 (S.D.N.Y. 2003) (accepting post-five-year registrations because “the record reveal[ed] absolutely no evidence that suggests that the . . . certificates should not be considered prima facie evidence of valid copyrights and nothing that would raise any question as to the validity of the copyrights covered by the registration certificates”), reconsideration denied, 218 F.RD. 396 (S.D.N.Y. 2003). Courts have accepted certificates of registration beyond the five-year period where there is no reason to question the validity of the claim to copyright. See, e.g., CJ Prods. LLC v. BTC Enterprises LLC, 2012 WL 1999829, at *4 (S.D.N.Y. June 1, 2012).
As to the second element, McGlynn has proven unauthorized copying by alleging that Towers republished the photograph without his permission, see Comp. ¶¶ 12-13, and has attached proof of the unauthorized copying, see Towers Art.
ii. DMCA Claim
In his proposed findings of fact, McGlynn states that his “claim for unlawful removal of copyright management information under 17 U.S.C. § 1202(b) is based on [Towers'] knowing removal of [McGlynn]'s attribution from the Photograph, ” Prop. Find. ¶ 2, and that Towers “removed [McGlynn]'s attribution from the Photograph as it was displayed on the Website, ” id. ¶ 7. McGlynn seeks damages for Towers' alleged violation of 17 U.S.C. § 1202(b)(3). See Prop. Find. ¶ 10. While 17 U.S.C. § 1202(b)(1), which prohibits removal or alteration of CMI, more naturally fits his allegation, McGlynn instead cites to 17 U.S.C. § 1202(b)(3), which prohibits the distribution of a work “knowing that the copyright management information has been removed or altered without authority of the copyright owner or the law.” To establish a claim under 17 U.S.C. § 1202(b)(3), a plaintiff must prove:
(1) the existence of CMI in connection with a copyrighted work; and (2) that a defendant distributed works or copies of works; (3) while knowing that CMI has been removed or altered without authority of the copyright owner or the law; and (4) while knowing, or having reasonable grounds to know that such distribution will induce, enable, facilitate, or conceal an infringement.Mango v. BuzzFeed, Inc., 970 F.3d 167, 171 (2d Cir. 2020) (punctuation omitted) (quoting 17 U.S.C. § 1202(b)(3)).
McGlynn has sufficiently pled a claim under 17 U.S.C. § 1202(b)(3). McGlynn has proven existence of CMI in connection with the photograph by alleging the photograph was originally published with McGlynn's name in the gutter credit and by attaching the original article with the gutter credit, see Comp. ¶ 9; Post Art. See 17 U.S.C. § 1202(c)(2) (explaining the term CMI includes “[t]he name of, and other identifying information about, the author of a work”); see also Mango v. BuzzFeed, Inc., 356 F.Supp.3d 368, 377 (S.D.N.Y. 2019) (“gutter credits constitute CMI under the statute”), aff'd, 970 F.3d 167 (2d Cir. 2020). McGlynn has satisfied the second element for a claim under 17 U.S.C. § 1202(b)(3) by alleging that Towers published the photograph to its website. See Comp. ¶ 12. In light of the evidence that the gutter credit had been displayed in the New York Post article, see Post Art., and was removed, see Comp. ¶ 20, it can be reasonably inferred that Towers knew that CMI had been removed or altered without McGlynn's authority, as required for the third element. Finally, in light of Towers' default, McGlynn's allegation that Towers “knew, or should have known” that removing the gutter credit would “induce, enable, facilitate, or conceal [its] infringement of [McGlynn]'s copyright, ” Comp. ¶ 24, is deemed admitted, thus satisfying the final element. See Olusola v. Don Coqui Holding Co., LLC, 2020 WL 8771246, at *3 (E.D.N.Y. Oct. 8, 2020) (allegation admitted by default that CMI was removed “knowingly and with the intent to induce, enable facilitate, or conceal their infringement” sufficient to establish liability) (“Olusola I”), adopted in relevant part by, 2021 WL 631031 (E.D.N.Y. Feb. 18, 2021) (Olusola II).
McGlynn's claims were brought after the expiration of the three-year statute of limitations for claims brought under the Copyright Act and the DMCA. See 17 U.S.C. § 507(b). Nonetheless, because Towers has defaulted, it has waived “its affirmative defense that the claims are barred by the statute of limitations, ” Romanowicz v. Alister & Paine, Inc., 2018 WL 4762980, at *4 n.2 (S.D.N.Y. Aug. 3, 2018), adopted by, 2018 WL 4759768 (S.D.N.Y. Oct. 1, 2018).
We also note that a declaration filed in relation to the application for a default judgment asserted that McGlynn did not discover the infringement until 2018. See Declaration of Richard P. Liebowitz in Support of Motion for Default Judgment ¶ 8, filed June 17, 2019 (Docket # 16) (“Liebowitz Default Decl.”).
B. Damages
i. Actual Damages Under the Copyright Act
“[A]n infringer of copyright is liable for either” actual damages or statutory damages. 17 U.S.C. § 504(a)(1)-(2). Here, McGlynn has elected to receive only actual damages. See Prop. Find. ¶ 9. Once infringement has been proven, “[t]he copyright owner is entitled to recover the actual damages suffered by him or her as a result of the infringement, and any profits of the infringer that are attributable to the infringement and are not taken into account in computing the actual damages.” 17 U.S.C. § 504(b).
“The Copyright Act grants courts discretion in calculating the actual damages sustained by a prevailing party, as long as the claim is reasonable according to typical market values.” Cuffaro v. Fashionisto LLC, 2020 WL 5077449, at *3 (S.D.N.Y. July 9, 2020) (punctuation omitted), adopted by, 2020 WL 5076826 (S.D.N.Y. Aug. 27, 2020). “To determine actual damages in a copyright action under 17 U.S.C. § 504(b), courts in this district often approximate lost licensing fees based on ‘the market value of the fee the owner was entitled to charge for such use.'” Eva's Photography, Inc. v. Alisa, LLC, 2020 WL 2904848, at *1 (S.D.N.Y. June 3, 2020) (quoting On Davis v. The Gap, Inc., 246 F.3d 152, 165 (2d Cir. 2001)). As the Second Circuit has stated:
The question is not what the owner would have charged, but rather what is the fair market value. In order to make out his claim that he has suffered actual damage because of the infringer's failure to pay the fee, the owner must show that the thing taken had a fair market value.On Davis, 246 F.3d at 166. Importantly, “[t]he burden is on plaintiff to produce evidence demonstrating the true extent of the damages.” Fleishman v. World Bride Mag., LLC, 2020 WL 7774843, at *3 (E.D.N.Y. Oct. 27, 2020), adopted by, 2020 WL 7770936 (E.D.N.Y. Dec. 30, 2020).
McGlynn asserts that the fair market value for a license of the photograph is $1,725 based on “the fair market value of a similar photograph of Jeffrey Epstein” as determined by “the price calculator provided by Getty Images, ” which McGlynn claims is “the leading stock photography agency, ” Prop. Find. ¶ 15; see Exhibit A to Liebowitz Decl. (“Getty Image”).
We accept that screenshots from the price calculator provided by the Getty Images website in some circumstances may aid in determining the fair market value for a licensing fee of a photograph. See, e.g., Cuffaro, 2020 WL 5077449, at *4-5; Romanowicz, 2018 WL 4762980, at *4-5; Terry v. Masterpiece Advert. Design, 2018 WL 3104091, at *4 (S.D.N.Y. June 21, 2018). Here, however, McGlynn's submission is simply inadequate to assure us that the Getty Images website is providing a value that approximates a reasonable licensing fee for the photograph at issue in this case. There are a number of parameters in the Getty Images price calculator that must be set to calculate a value for a licensing fee, including the use, format, sizes, placement, and duration of license. See Getty Images, Price a Rights-Managed Image, https://www.gettyimages.com/purchase/price-calculator/1157188512 (“Price Calc.”). Here, McGlynn selected “[c]orporate and promotional site, ” “[u]p to 1 full page, ” and a duration of “[u]p to 5 years.” See Getty Image. He also selected a photograph of Jeffrey Epstein accompanied by Ghislaine Maxwell, who was herself accused of criminal conduct, as the benchmark photograph. See id. But it is not at all clear that these choices correspond to McGlynn's photograph and its usage by Towers. First, and perhaps most significantly, the benchmark image includes Ghislaine Maxwell, who is herself a person of interest to the public, see Getty Image, while McGlynn's photograph depicts only Epstein and an unidentified person, see McGlynn Photo. Second, as noted, McGlynn selected the parameter stating that the duration of the license would be “[u]p to five years, ” that the format of the use is a “[c]orporate and promotional site” as opposed to a commercial blog, and the size of the image was “[u]p to 1 full page.” See Getty Image. But Towers' infringing use consisted of a single use of the photograph on the blog portion of its commercial website, see Comp. ¶¶ 7, 12, and was much smaller than a full page, see Towers Art. In light of these significant differences, we cannot trust that the figure derived from the price calculator by McGlynn provides an appropriate license fee to determine the fair market value of a license for the photograph. Indeed, keeping all other applicable parameters the same but adjusting the Getty Images price calculator for an image of Epstein alone for use in a commercial blog, for up to three years (the maximum time period allowed) results in a licensing fee of $166. See Price Calc. Because a court must make an award of actual damages “based on a factual basis rather than undue speculation, ” On Davis, 246 F.3d at 163 (punctuation omitted), McGlynn has not met his burden of proof as to actual damages.
ii. Damages Under the DMCA
“[A] person committing a violation of” 17 U.S.C. § 1202 “is liable for either (A) the actual damages and any additional profits of the violator . . . or (B) statutory damages.” 17 U.S.C. § 1203(c)(1). McGlynn has elected to receive statutory damages. See Prop. Find. ¶ 10. A party electing to receive statutory damages for a violation of 17 U.S.C. § 1202 is to recover “for each violation” a “sum of not less than $2,500 or more than $25,000.” 17 U.S.C. § 1203(c)(3)(B). McGlynn seeks $10,000 in statutory damages. Prop. Find. ¶ 10.
McGlynn argues that “[i]n cases involving the removal of copyright management information from a single infringed photograph, courts in this District have consistently awarded $10,000.00 in statutory damages for a default defendant's violation of § 1202(b)(3).” Prop. Find. ¶ 19. McGlynn supports his request for $10,000 in statutory damages by citing to a number of unpublished orders, see id., copies of which he submitted to the Court, see Default Judgment Orders, annexed as Exhibit B to Liebowitz Decl. These unpublished orders, however, do not include any reasoning for the figure chosen and are thus of little persuasive value. See Jerstad v. New York Vintners LLC, 2019 WL 6769431, at *4 (S.D.N.Y. Dec. 12, 2019) (finding such orders to not be “appropriate comparisons”), adopted by, 2020 WL 58237 (S.D.N.Y. Jan. 6, 2020).
As noted previously, § 1202(b)(3) imposes liability for distribution of a work with altered or removed CMI, not the removal of CMI. “Removal or alteration” of CMI is prohibited under a separate provision, § 1202(b)(1), which McGlynn has not invoked.
“In awarding statutory damages under the DMCA, courts consider several factors, namely, the difficulty of proving actual damages, the circumstances of the violation, whether defendants violated the DMCA intentionally or innocently, and deterrence.” Myeress v. Elite Travel Grp. USA, 2018 WL 5961424, at *4 (S.D.N.Y. Nov. 14, 2018) (punctuation omitted).
Here, McGlynn has not shown how he was impeded in providing evidence of actual damages. We have been provided little evidence of the circumstances of the violation except that it appears it was confined to a single infringement. No evidence has been supplied of any direct harm to McGlynn. As for Towers' state of mind, Towers' default has resulted in its admitting the allegation that it acted intentionally, see Comp. ¶ 24. See Olusola II, 2021 WL 631031, at *4 (“Plaintiff alleges, and Defendant admits by defaulting, that Defendant acted ‘intentionally and knowingly' in removing Plaintiff's CMI from the Photograph. . .”). In these circumstances, an award of $5,000 in statutory damages - rather than $10,000 - for Towers' violation of the DMCA is more in keeping with awards made by other courts in similar circumstances. See id. at *6 (“The Court finds that statutory damages in the amount of $5,000 are appropriate for Defendant's DMCA violation as Plaintiff established that Defendant willfully removed CMI, but provided no evidence of direct harm suffered as a result.”); Dermansky v. Tel. Media, LLC, 2020 WL 1233943, at *6 (E.D.N.Y. Mar. 13, 2020) ($5,000 in statutory damages awarded where there was a finding of willfulness, “there was only one act of infringement, Plaintiff took no action to cure the violation, such as by sending a cease-and-desist letter or application for injunctive relief, and Plaintiff ha[d] submitted no evidence of actual harm in support of her application”); Mango, 356 F.Supp.3d at 378 ($5,000 for a single violation of 17 U.S.C. § 1202(b)(3)); Myeress, 2018 WL 5961424, at *4 ($5,000 awarded where plaintiff's “allegations . . . suggest that Defendant acted willfully”).
iii. Attorneys' Fees and Costs
Under 17 U.S.C. § 1203(b)(5) a court may, “in its discretion[, ] . . . award reasonable attorney's fees to the prevailing party.” “An award of fees is not automatic but lies within the sole and rather broad discretion of the Court.” Cuffaro, 2020 WL 5077449, at *6 (punctuation omitted). “In determining whether fees are warranted, the Court looks at factors such as the frivolousness of the non-prevailing party's defenses, motivation, objective reasonableness, and deterrence.” Jerstad, 2019 WL 6769431, at *4 (citing Bryant v. Media Right Prod., Inc., 603 F.3d 135, 144 (2d Cir. 2010)).
Having considered these factors, we believe an award of attorneys' fees is warranted. There is no evidence as to Towers' motivation, McGlynn's claims were objectively reasonable, and Towers offered no defenses in light of its default. An award of fees will reinforce the importance of allowing copyright holders to protect their CMI, incentivize attorneys to take on such claims, and deter future violators. Courts have awarded “modest” attorneys' fees and costs upon similar findings. See Ward v. Compound Ent. LLC, 2020 WL 6136293, at *8 (S.D.N.Y. Apr. 27, 2020) (finding a “modest award of attorneys' fees and costs [was] warranted” where “plaintiff's claims, while bare-bones, were neither frivolous nor objectively unreasonable” and defendant “offered no defense for its violations, having defaulted”), adopted by, 2020 WL 4496763 (S.D.N.Y. Aug. 3, 2020); Jerstad, 2019 WL 6769431, at *5 (awarding a “modest amount” in attorneys' fees where plaintiff's DMCA claim “while technically valid, [was] borderline reasonable”).
As the Second Circuit noted in Arbor Hill Concerned Citizens Neighborhood Ass'n v. Cty. of Albany, 522 F.3d 182 (2d Cir. 2008), “[t]he most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.” Id. at 186 (quoting Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)). This calculation yields a “presumptively reasonable fee, ” and is commonly referred to as the “lodestar.” Id. at 183. Using the lodestar method, McGlynn seeks $2550 in attorneys' fees for his attorney, Richard Liebowitz. See Prop. Find. ¶ 21; Liebowitz Default Decl. at 6. In support of this request, McGlynn submits a “Statement of Fees” which is a chart with dates, descriptions of the services provided on that date, the total amount of time spent, and the total amount charged for that task. See Prop. Find. at 6; Liebowitz Default Decl. at 6.
The Second Circuit has squarely held that “any attorney . . . who applies for court-ordered compensation in this Circuit . . . must document the application with contemporaneous time records . . . specify[ing], for each attorney, the date, the hours expended, and the nature of the work done.” N.Y. State Ass'n for Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1148 (2d Cir. 1983); accord Scott v. City of New York, 643 F.3d 56, 58 (2d Cir. 2011) (“Carey sets out unequivocally that absent unusual circumstances attorneys are required to submit contemporaneous records with their fee applications.”). Fee applications that do not contain such supporting data “should normally be disallowed.” Marion S. Mishkin L. Off. v. Lopalo, 767 F.3d 144, 148 (2d Cir. 2014). While it is permissible to provide a summary of time records (such as may appear on an invoice) in lieu of actual records, a person with knowledge must still provide the court with competent evidence that the summary is in fact based on time records that were contemporaneously made by each attorney seeking fees. See, e.g., Cruz v. Local Union No. 3 of Int'l Brotherhood of Elec. Workers, 34 F.3d 1148, 1160-61 (2d Cir. 1994); Hollander Glass Texas, Inc. v. Rosen-Paramount Glass Co., Inc., 291 F.Supp.3d 554, 562-63 (S.D.N.Y. 2018), adopted by, 2019 WL 416327 (S.D.N.Y. Feb. 1, 2019). Here, McGlynn failed to submit any competent evidence to support a finding that the “Statement of Fees” is based on contemporaneously-made time records. Accordingly, no attorneys' fees should be awarded.
Indeed, the “Statement of Fees” does not even differentiate which attorneys performed which tasks, see Prop. Find. at 6, even though an attorney other than Liebowitz signed the complaint, see Comp. at *6.
17 U.S.C. § 1203(b)(4) permits a court “in its discretion” to “allow the recovery of costs by or against any party other than the United States or an officer thereof.” McGlynn requests $480 in costs, consisting of $400 for a court filing fee and $80 for a service fee. See Prop. Find. at 6. While the Court would be prepared to award reasonable costs, McGlynn fails to submit any documentation supporting such costs. “Courts in this district” have “repeatedly . . . refused to award costs absent supporting documentation.” Exler v. Travel Expl., Inc., 2020 WL 8642113, at *2 (S.D.N.Y. Nov. 10, 2020) (punctuation omitted); see McGlynn v. Cools, Inc., 2020 WL 6561658, at *12 (S.D.N.Y. July 1, 2020) (finding “a $40 service of process fee” should not be awarded where “Plaintiff [had] submitted no back-up support for any requested costs”), adopted by, 2020 WL 5525745 (S.D.N.Y. Sept. 15, 2020). We are prepared to take judicial notice, however, that McGlynn paid a $400 filing fee given that the payment has been entered by the Clerk on the docket sheet. See Ward, 2020 WL 6136293, at *9 (“because Plaintiff declined to provide any evidence of costs, the Court may take judicial notice of the $400 filing fee, as reflected on the docket, but should deny any additional costs”) (punctuation omitted). Accordingly, McGlynn should be awarded the $400 filing fee in costs.
III. CONCLUSION
For the foregoing reasons, McGlynn should be awarded a judgment against Towers in the amount of $5,400. The Clerk is requested to mail a copy of this Report and Recommendation tp Towers at the following address:
TOWER INVSTORS.COM INC. 207 OAKLEY AVE, SUITE 44 MASSAPEQUA, NY 11758
PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file any objections. See also Fed.R.Civ.P. 6(a), (b), (d). A party may respond to any objections within 14 days after being served. Any objections and responses shall be filed with the Clerk of the Court. Any request for an extension of time to file objections or responses must be directed to Judge Engelmayer. If a party fails to file timely objections, that party will not be permitted to raise any objections to this Report and Recommendation on appeal. See Thomas v. Arn, 474 U.S. 140 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).