United States District Court, W.D. Wisconsin
OPINION & ORDER
D. PETERSON, DISTRICT JUDGE.
September 27, 2017, the court issued an order on the
parties' cross-motions for summary judgment, concluding
that claim preclusion bars any claim of infringement against
the Zimprich joint tortfeasors based on infringing copies
made before January 16, 2015. Dkt. 727. In a November 8
order, the court granted in part defendants Nicholas Martin
and Gerald Miller's motion to amend the September 27
order and dismissed them from the case. Dkt. 754. Now
plaintiffs Scott Boehm and David Stluka move for
reconsideration of that order, Dkt. 769; Martin and Miller
move for attorney fees and costs, Dkt. 761. The court will
grant plaintiffs' motion and grant Martin and
Miller's motion in part.
Plaintiffs' motion for reconsideration
September 27 order, the court granted Martin and Miller's
summary judgment motion (among others) and instructed
plaintiffs to “identify by defendant and image each
viable infringement claim that they intend to take to
trial” and notified plaintiffs that they “may
proceed on only those claims at trial.” Dkt. 727, at
40. Plaintiffs did so. See Dkts. 736-1 through
736-5. They did not list any claims against Martin or Miller.
Around the same time, Martin and Miller asked the court to
amend its September 27 order. Dkt. 729. They contended that
because the court granted summary judgment in their favor, it
should dismiss them from the case. In its November 8 order,
the court explained that neither side moved for summary
judgment on one act of infringement by Martin: copying
Boehm's photograph of Soldier Field and reposting it on a
website. Dkt. 754, at 7. Martin admitted to this infringing
act, and as a result, the court held him in contempt for
violating the preliminary injunction. See Dkt. 668,
at 1. Under the law of the case articulated in the
court's September 27 order, an infringement claim based
on this act remained viable, so dismissing Martin from the
case at that point would have been inappropriate. But because
plaintiffs did “not list this photo as one that they
intend to bring to trial [and did] not list any
claims against Martin and Miller that they intend to take to
trial, ” the court dismissed Martin and Miller from the
case on November 8. Dkt. 754, at 8.
plaintiffs ask the court to reconsider. They move under
Federal Rules of Civil Procedure 60(b), which provides for
relief from “a final judgment, order, or
proceeding” on many grounds, including mistake,
excusable neglect, and “any other reason that justifies
relief.” “[R]elief under Rule 60(b) is proper
only under extraordinary circumstances.” Hill v.
Rios, 722 F.3d 937, 938 (7th Cir. 2013).
acknowledge that they failed to indicate that they intend to
take to trial a claim against Martin concerning the Soldier
Field image, but they contend that their failure was a
mistake: they read the court's September 27 order as
barring this claim. See Dkt. 769, at 2 (citing Dkt.
727, at 26 (“So claim preclusion bars plaintiffs'
claim concerning the Soldier Field image and the court will
grant summary judgment in Miller's favor on this
claim.”)). Without getting into the weeds, the
September 27 order did not bar this claim, but
plaintiffs' interpretation qualifies as excusable
neglect. So the court will grant plaintiffs' motion and
reinstate Martin as a defendant in this lawsuit. Plaintiffs
may proceed to trial on one claim against Martin concerning
the 2016 copying and public displaying of Boehm's Solider
Martin and Miller's motion for attorney fees
and Miller now move for an award of attorney fees and costs.
Grounds for attorney fees
court explained in its November 8 order, the Copyright Act
allows district courts to “award a reasonable
attorney's fee to the prevailing party.” 17 U.S.C.
§ 505. Because the court will grant plaintiffs'
motion for reconsideration, Martin has not prevailed and
cannot collect attorney fees. (At least, not yet.) But the
court will award fees to Miller for the same reasons it
awarded fees to Scott Svehla and Scott's Brewery
Collectibles, LLC (SBC). See Dkt. 754, at 9-12. Just
like SBC, Miller admitted to infringing plaintiffs'
copyrights in several photos and avoided liability only
because plaintiffs' claims were precluded by Boehm
I, so a partial award of fees is appropriate.
Amount of attorney fees
court explained in its November 8 order, it considers whether
the attorney's hourly rate and the hours spent are
reasonable when determining the amount of fees to award.
See Dkt. 754, at 12. Miller seeks a total of $14,
802.50 in fees for the 35.1 hours that his attorney spent
working on this case. The hourly rates charged for this work
were between $405 and $440. Plaintiffs do not dispute the
reasonableness of these rates, and because they are the
actual billing rates, they are presumptively reasonable.
Likewise, plaintiffs do not dispute the reasonableness of the
number of hours billed. Miller's attorney actually billed
these hours to Miller. The court has reviewed the billing
records, and these hours were reasonably expended.
just as with Svehla and SBC, the unique circumstances of this
case call for only a partial award of attorney fees. The
court awarded Svehla and SBC only one third of their total
fees. Here, because Miller, unlike Svehla and SBC, raised the
claim preclusion defense at summary judgment, the court will