Summary
In Polsby v. St. Martin's Press, Inc., No. 97 Civ. 690, 2001 WL 180124, at *1 (S.D.N.Y. Feb. 22, 2001), the court reduced the requested fee amount by almost 90% in order to "take into account the financial circumstances of the plaintiff," who had a "modest income" and liability for back taxes, but who "d[id] have some earning power as the result of her [medical] degree."
Summary of this case from Randolph v. Dimension FilmsOpinion
97 Civ. 690 (MBM)
February 21, 2001
M. MAUREEN POLSBY, M.D., (Plaintiff pro se)
BRUCE W. SANFORD, ESQ., ROBERT D. LYSTAD, ESQ., DAVID S. WACHEN, ESQ., Baker Hostetler, Washington D.C. 20036 (Attorneys for Defendants)
OPINION AND ORDER
The case is before the court on defendants' motion pursuant to 17 U.S.C. § 505 (1994) to set costs and attorneys' fees pursuant to the court's order denying plaintiff's motion for reconsideration of a prior opinion that awarded a summary judgment in defendants' favor, and granting their motion for attorneys' fees. Plaintiff's claims of copyright infringement were found to be objectively frivolous because she could present no proof either that defendants had access to her manuscript or that they copied her expression of her ideas. The cited statute permits the court in its discretion to allow the recovery of "full costs" by or against any party other than than the United States or an officer thereof, and to award "a reasonable attorney's fee . . . as part of the costs." Familiarity with both prior rulings herein is assumed for current purposes. See Polsby v. St. Martin's Press, Inc., et al., 2000 U.S. Dist. LEXIS 596 (S.D.N.Y. Jan. 18, 2000); see also, Polsby v. St. Martin's Press, Inc., et al., 1999 U.S. Dist. LEXIS 5416 (S.D.N.Y. April 19, 1999).
Defendants have submitted proof in proper form as to their costs and fees. In the interest of moderation, and in consideration of plaintiff's status as a pro se party, they have demanded only two-thirds of the actual costs and fees they incurred — a total of $2,773.80 in costs and $44,718.98 in fees, as compared to $4,160.70 in costs and $67,078.47 in fees actually paid. (See Affidavit of Bruce W. Sanford, sworn to Feb. 9, 2000, ¶¶ 12, 20)
Plaintiff does not dispute the amount of fees proved by defendants, as so reduced. Rather, she presents two lines of argument in opposition to the motion. First, she continues to argue that her claims, dismissed as objectively frivolous, are actually meritorious. Second, she argues that she cannot afford to pay even the reduced amount demanded by defendants, and submits her 1998 income tax return to substantiate the assertion that, despite her M.D. degree, she is impecunious. She has submitted also several notices from the Internal Revenue Service which indicate that she is in arrears in paying past taxes due pursuant to an installment agreement previously entered into. (See Plaintiff's Response to Defendants' Application for Award of Attorneys' Fees and Costs, pp. 1, 5, 6 and attachments).
A court that awards fees to a defendant must take into account the financial circumstances of the plaintiff. See Sassower v. Field, 973 F.2d 75, 81 (2d Cir. 1992). This principle has been applied in cases under the Copyright Act. Cf. Broadcast Music, Inc. v. Melody Fair Enterprises, Inc., Nos. 89 Civ. 70, 89 Civ. 1223, 1990 WL 284743 (S.D.N.Y. Oct. 29, 1990) (permitting defendants to file affidavits setting forth their ability to satisfy award of attorney's fees against them in a case governed by 17 U.S.C. § 504).
Considering that plaintiff appears to have a modest income but does have some earning power as the result of her degree, and considering also plaintiff's resolute refusal thus far to abandon litigation that is objectively without legal basis, in this district and elsewhere, I believe it is reasonable to grant defendants costs in the amount they request — $2,773.80 plus an additional $5,000 in legal fees, for a total of $7,773.80. This award is justified not only by the need to compensate defendants for plaintiff's past conduct, but also by the apparent need to deter future litigation of this matter.
For the above reasons, defendants' motion is granted to the extent that they are awarded a total of $7,773.80, and is otherwise denied.