United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
Honorable Thomas M. Durkin United States District Judge.
Inc. (FFN) brought this action against Jasmine Enterprises
for copyright infringement after Jasmine posted celebrity
wedding photos on its company blog. In January 2019, the
parties stipulated to the facts, evidence, and a statutory
damages award, reserving only their claims to attorneys'
fees. R. 110. Now before the Court is FFN's petition for
attorneys' fees and costs , and Jasmine's motion
to strike FFN's motion . For the following reasons,
Jasmine's motion to strike is granted in part and denied
in part, and FFN is awarded $10, 500 in attorneys' fees
case exemplifies the familiar adage of cutting off your nose
to spite your face. Less than two months after FFN filed its
complaint in the fall of 2016, the parties ended settlement
negotiations because they could not bridge the $1, 000 gap
between the $16, 000 demand and $15, 000 offer. Now, over
two-and-a-half years later, and after a stipulated statutory
damages award of only $5, 000, FFN requests attorneys'
fees totaling $241, 443.77.
underlying facts will not be repeated at length
here. FFN owns copyrights to 46 photographs of
Nicky Hilton and James Rothschild from the couple's July
2015 wedding. R. 110 ¶¶ 14-16. That August, an
employee of Jasmine Enterprises, a wedding dress retailer,
posted three of those photos on the company's blog
without FFN's permission. Id. ¶¶ 13,
21; R. 84 ¶ 23. FFN observed the photographs that
October, sent a cease-and-desist letter the following June,
and sued Jasmine for copyright infringement in the Southern
District of New York in September 2016. R. 110
¶¶ 18, 25; R. 1. Less than one month after
Jasmine was served, FFN demanded $16, 000 to settle the case.
R. 114 ¶ 9. FFN arrived at that amount by
multiplying the highest licensing fee FFN had received for a
Hilton-Rothschild wedding photograph by three ($2, 500 from
People Magazine), and adding to that its attorneys' fees
as of that date ($7, 800). Id. Jasmine countered at
$15, 000, which FFN's counsel declined, stating:
“We will probably never be this close again but no
problem. It was a good try. Plaintiff withdraws all offers of
settlement. We will reprice after conference/motion/whatever
comes next.” Id. ¶¶ 10-11. Jasmine
again offered to settle the case for $15, 000 that December
and the following February. Id. ¶¶ 17, 25.
In June 2017, FFN rejected Jasmine's offer of judgment
for $15, 000, inclusive of attorneys' fees. Id.
¶¶ 33-34. Meanwhile, FFN's attorneys'
fees had climbed to $55, 450. Id. ¶ 34. For the
next year, the parties engaged in discovery disputes,
including motions to compel and for sanctions by Jasmine.
Id. ¶¶ 47, 63.
September 2018, this Court granted FFN's motion for
summary judgment as to Jasmine's liability. R. 99.
Following the Court's order, FFN made an all-inclusive
$200, 000 demand. R.114 ¶ 70. In the subsequent weeks,
Jasmine offered $15, 000 and then $17, 500 to settle the
case, which FFN again declined. Id. ¶¶ 72,
of trial, the parties stipulated to the facts and a statutory
damages award of $5, 000, reserving only their claims to
attorneys' fees. R. 110 at 1. FFN then filed its motion
requesting $225, 567.18 in attorneys' fees and costs and
submitted declarations from the following four members of
Sanders Law PLLC: Craig Sanders, Erica Carvajal, David
Barshay, and Jonathan Cader. R. 113-117. Carvajal's
declaration provides a detailed synopsis of the firm's
work and interactions with Jasmine. The other declarations
attest to the accuracy of FFN's billing records and
costs. Shortly thereafter, Jasmine filed its opposition, as
well as a motion to strike FFN's motion. FFN then
increased its request to $241, 443.77 to account for its
additional work preparing the reply and its opposition to
Jasmine's motion to strike.
Jasmine's Motion to Strike Jasmine provides a laundry
list of reasons why this Court should strike FFN's motion
for fees. The Court is largely unpersuaded.
Jasmine contends that FFN's motion “is predicated
almost entirely on inadmissible settlement communications and
confidential mediation proceedings, ” and is thus
barred by Federal Rule of Evidence 408. R. 119 at 2. To
support its position, Jasmine cites two patent cases from the
Eastern District of New York in which the court held
settlement negotiations involving attorneys' fees were
inadmissible. See R. 119 at 2-3; HR U.S. LLC v.
Mizco Int'l, Inc., 2010 WL 3924548, at *11 (E.D.N.Y.
Sept. 29, 2010) (finding evidence of settlement negotiations
inadmissible in request for attorneys' fees in patent
case); Siracuse v. Program for the Dev. of Human
Potential, 2012 WL 1624291, at *20 (E.D.N.Y. Apr. 30,
2012) (finding defendant's reference to settlement offers
in opposing plaintiff's request for fees was
“inappropriate” and citing Mizco). In
response, FFN cites several cases that come to the opposite
conclusion, including a more recent Eastern District of New
York case directly on point. See R. 124 at 5;
Fortgang v. Pereiras Architects Ubiquitous LLC, 2018
WL 1832184, at *4 (E.D.N.Y. Mar. 9, 2018), report and
recommendation adopted, 2018 WL 1505564 (E.D.N.Y. Mar.
27, 2018) (“This Court joins others that have held that
Rule 408 does not bar consideration of settlement discussions
in the context of determining whether attorneys' fees are
appropriate under Section 505 of the Copyright Act.”);
see also Lohman v. Duryea Borough, 574 F.3d 163, 167
(3d Cir. 2009) (holding Rule 408 does not bar a court's
consideration of settlement negotiations in its analysis of
what constitutes a reasonable fee award); Ingram v.
Oroudijan, 647 F.3d 925, 927 (9th Cir. 2011) (holding
district court did not err by considering settlement
negotiations for the purpose of deciding a reasonable
attorneys' fee award); Greenwich Film Prods., S.A. v.
DRG Records, Inc., 1996 WL 502336, at *2 (S.D.N.Y. Sept.
5, 1996) (“While determining the reasonableness of a
claim for attorney's fees is not specifically mentioned
as a purpose for which evidence of a settlement offer may be
considered, strong public policy considerations support its
admissibility for that purpose.”). Although the Seventh
Circuit has not ruled on the issue, the weight of authority
supports considering settlement discussions when ruling on
whether to award attorneys' fees. That conclusion is
consistent with Rule 408, under which the admissibility of
evidence depends on whether the evidence is intended to
“prove liability of or invalidity of the claim or its
amount, ” or whether it is offered for “another
purpose.” Clevenger v. Bolingbrook Chevrolet,
Inc., 401 F.Supp.2d 878, 880 (N.D. Ill. 2005) (quoting
Fed.R.Evid. 408). Here, as Jasmine readily acknowledges in
its motion to strike, FFN submitted the parties'
settlement negotiations as proof of Jasmine's
“litigation conduct.” See R. 119 at 3-4.
As such, the settlement negotiations are admissible for the
purposes of FFN's motion.
also argues that the Court should strike FFN's motion for
fees because FFN breached the Southern District of New York
Mediation Program's confidentiality provision by
disclosing Jasmine's conduct and settlement offer during
the mediation proceedings. This argument also fails. The
confidentiality provision provides that “[a]ny
communications made exclusively during or for the mediation
process shall be confidential except as to the provisions
indicated in this section.” S.D.N.Y. Procedures of the
Mediation Program 2(a) (Dec. 26, 2018). However, Jasmine
did not point this Court to one statement made exclusively
for the mediation process, and thus there is no basis for
striking FFN's motion on that ground.
next argues the Court should strike Carvajal's
declaration because she was not included in FFN's Rule 26
initial disclosures. Tellingly, Jasmine cites no cases in
support of its position. The purpose of discovery rules is to
“facilitate the development of the facts underlying a
given dispute so that justice may be done on the
merits.” Avnet, Inc. v. Motio, Inc., 2016
WL 927194, at *4 (N.D. Ill. Mar. 4, 2016) (emphasis added).
Here, the merits concern information regarding FFN's
infringement claim, not its request for attorneys' fees.
Further, to the extent Jasmine argues FFN never disclosed
Carvajal, this argument need not be entertained as
Carvajal's name appears on top of the docket sheet and
thus Jasmine was fully aware of her connection to the case.
See Gicla v. United States, 572 F.3d 407, 411 (7th
Cir. 2009) (“Rule 26 is designed to avoid surprise . .
also contends that the Court should strike portions of
Carvajal's declaration because it contains hearsay
statements and references to Jasmine's insurance in
violation of Federal Rules of Evidence 802 and 411. Turning
first to hearsay, Jasmine does not explain the basis for its
objections and cites no cases in support of its position. As
an initial matter, the Court is not compelled to fill in the
gaps in Jasmine's arguments. See Harvey v. Town of
Merrillville, 649 F.3d 526, 532 (7th Cir. 2011)
(arguments that are perfunctory, undeveloped, or unsupported
by authority are waived). In addition, as FFN correctly
points out, affidavits need not be admissible in form so long
as they would be admissible in content. See Winskunas v.
Birnbaum, 23 F.3d 1264, 1267-68 (7th Cir. 1994). Having
reviewed Jasmine's objections and FFN's responses,
the statements at issue either do not constitute hearsay,
fall under an exception, and/or are admissible in content if
not form. Thus, Jasmine's hearsay objections miss the
argument based on Rule 411 is equally unavailing. Rule 411
provides that evidence “a person was or was not insured
against liability is not admissible to prove whether the
person acted negligently or otherwise wrongfully. But the
court may admit this evidence for another purpose . . .
.” Fed.R.Evid. 411. Here, FFN mentions Jasmine's