Lopez v. Fashion Nova, Inc.

Background

Robert G. Lopez brought a copyright-infringement action against seven named defendants. Three defendants were never served and were later dismissed for failure to prosecute. Lopez voluntarily dismissed three other served defendants, leaving TP Apparel, LLC (TPA).

TPA told Lopez that it believed the claim was improper and baseless for several reasons, including that Lopez had not received the copyright registration certificate before filing suit. TPA also stated that no sale of the allegedly infringing product had occurred and referred to a prior settlement agreement that it said required notice and an opportunity to cure before a lawsuit. Lopez refused to dismiss the case and said that he had not yet received the registration certificate.

Lopez did not respond to TPA’s required pre-motion letter, did not attend scheduled conferences, and did not respond to TPA’s motion to dismiss. On February 11, 2021, the court dismissed the case against TPA because the complaint did not allege copyright registration and Lopez had admitted that he had not received the registration certificate.

Attorneys’ Fees

TPA then moved for attorneys’ fees under section 505 of the Copyright Act. The court explained that this provision gives courts broad discretion to award fees based on the circumstances, including frivolousness, motivation, objective unreasonableness, and the need for compensation or deterrence. The court gave substantial weight to whether the losing party’s position was unreasonable.

Although fee awards against self-represented plaintiffs are ordinarily rare, the court determined that an award was appropriate here. It found that Lopez’s refusal to dismiss the action after TPA informed him of the registration requirement was unreasonable. The court also found that his disregard of orders to respond and attend conferences caused TPA to incur unnecessary legal fees. The court noted that Lopez had proceeded without a lawyer, had filed numerous similar copyright lawsuits, and was familiar with—or had been advised of—the registration requirement. The court also stated that, based on submissions supporting the motion, Lopez appeared to be running a business representing himself and others in similar cases, although he was not an attorney.

Amount of the Award

The court granted the request for $11,707.50 as reasonable. It approved attorney Mr. Wilson’s hourly rate of $525, noting his more than thirty years of intellectual-property litigation experience and that TPA actually paid that rate under its billing arrangement.

The court also found the hours reasonable. TPA sought fees for 22.3 hours worked between November 14, 2020, when Lopez was informed that the claim was baseless, and February 11, 2021, when the claims against TPA were dismissed. The work included communicating with Lopez, researching and preparing the pre-motion letter, preparing the dismissal motion and supporting memorandum, and preparing for and participating in three delayed hearings. TPA did not seek fees for defending the action before November 14 or for preparing the fee motion. The court calculated the award using a lodestar—the reasonable hourly rate multiplied by reasonable hours—with a multiplier of one.

Disposition

The court ordered that TPA be awarded $11,707.50 in reasonable attorneys’ fees. It also certified under 28 U.S.C. § 1915(a)(3) that any appeal from the order would not be taken in good faith and denied permission to proceed without paying fees for purposes of an appeal.