Livingston v. Jay Livingston Music, Inc., et al.

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
TAMMY LIVINGSTON,
Plaintiff,
v.
JAY LIVINGSTON MUSIC, INC., et al.,
Defendants.
Case No. 3:22-cv-00532
Judge Waverly D. Crenshaw, Jr.
Magistrate Judge Luke A. Evans
To: 	The Honorable Waverly D. Crenshaw, Jr., District Judge
REPORT AND RECOMMENDATION
This matter has been referred to the Magistrate Judge for preparation of a Report and
Recommendation on Defendants’ Renewed and Supplemental Motion for Attorneys’ Fees. (Doc.
No. 98). For the following reasons, the Magistrate Judge will recommend that the Defendants be
awarded $385,979.05 in attorneys’ fees as supported by the Declarations of Tim Warnock (Doc.
No. 100) and Owen Sloan (Doc. No. 101).
I. 	Background
A. 	Factual Background
This action involves a dispute between family members over how to manage certain music
royalties that were specifically addressed by the decedent, Jay Livingston (Jay), in the various
trusts that were created as part of in his estate plan. 1 For years, Plaintiff received a portion of
these royalties. In 2015, Defendants began filing notices to terminate publishing and copyright
1 	The Court’s Memorandum Opinion (Doc. No. 79) provides a full and detailed recitation of
the facts; therefore, there is no need for an additional restatement of those details to resolve the
issues addressed by this Report and Recommendation. Therefore, the Magistrate Judge includes
only the relevant facts and procedural history.
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grants to certain compositions. These notices of termination directly affected some of the royalties
that Plaintiff received as income. In response, Plaintiff brought this action seeking a declaration
that Defendants’ copyright termination notices are invalid under Section 203 of the Copyright Act
of 1976, 17 U.S.C. § 203, or, if the termination notices are deemed valid, that she remains entitled
to certain royalties. (Doc. No. 46 at 7–8). The Defendants filed a Motion to Dismiss. (Doc. No.
49.) On February 21, 2024, the Court granted Defendants’ motion. (Doc. No. 80.)
B. 	Procedural History
On July 14, 2022, Plaintiff filed her Complaint (Doc. No. 1). On September 6, 2022,
Defendants filed a Motion to Dismiss (Doc. No. 9). On September 17, 2022, Plaintiff filed a
Motion for Extension of Time to file a response to the motion (Doc. No. 15). Instead of filing a
response, Plaintiff filed an Amended Complaint (Doc. No. 17). On October 7, 2022, Defendants
filed another Motion to Dismiss (Doc No. 19). Plaintiff filed a response to the motion (Doc.
No. 24). On January 5, 2023, Plaintiff filed a second motion to amend the complaint (Doc. No. 36).
Defendants opposed the motion maintaining that the Second Amended Verified Complaint was
both futile and frivolous (Doc. No. 38). The Court allowed Plaintiff to amend her Complaint a
second time (Doc No. 45). On April 19, 2023, Defendant moved to dismiss the Second Amended
Verified Complaint (Doc. No. 49). In their motion, the Defendants characterize Plaintiff’s actions
as an “attempt to outrun her meritless claims by seeking leave to amend once a motion to dismiss
is fully briefed” (Doc. No. 50 at 2 n.2). On January 30, 2024, the Court entered an Order requiring
the Plaintiff to show cause why her claims were not time barred by the Copyright Act’s three-year
statute of limitations (Doc. No. 75).
On February 21, 2024, the Court entered an order dismissing Plaintiff’s Second Amended
Verified Complaint (Doc. No. 80). In its Memorandum Opinion (Doc. No. 79), the Court
characterized the Second Amended Verified Complaint as a “morass of argument and legalese.”
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Id. at 8. The Court opined that Plaintiff’s arguments in support of the validity of her claims
“collapse under their own weight; either they expressly contradict documents Tammy placed
squarely before the Court or they are entirely unmoored from the law.” Id. at 10. The Court further
found that at least one of Plaintiff’s claims “failed to meet the bare pleading standard . . . .” Id.
at 14. 	On 	two 	occasions, 	the 	Court 	noted 	that 	Plaintiff’s 	contentions 	were 	“wrong” 	or
mischaracterizations of documents at issue. Id. at 11 and 14.
Defendants timely filed their Motion for Attorneys’ Fees on March 19, 2024 (Doc. No. 82).
On March 20, 2024, Plaintiff filed a Notice of Appeal (Doc. No. 86). In light of Plaintiff’s appeal,
the Court denied Defendants’ Motion for Attorneys fees without prejudice (Doc. No. 95). On July
7, 2025, the Sixth Circuit delivered its opinion affirming the trial Court’s dismissal (Doc. No. 96).
The appellate court found that Plaintiff’s Complaint failed to allege sufficient facts to support a
plausible theory of relief (Doc. No. 96 at 8).
During the pendency of this action, the parties continued to conduct discovery. The parties
sought leave of Court on three occasions to resolve discovery disputes (Doc. No. 58, 67, 71.)
Defendants filed their Renewed and Supplemental Motion for Attorneys’ Fees on August
28, 2025 (Doc. No. 98) with the supporting declarations of Tim Warnock (Doc. No. 100) and
Owen Sloane (Doc. No. 101). Defendants seek $385,979.05 in attorneys’ fees. (Doc. No. 98.)
Plaintiff opposes the motion, claiming that the fees requested are unreasonable for a myriad of
reasons (Doc. No. 107). This matter has been fully briefed and is ripe for decision.
II. 	Legal Standard
The Copyright Act authorizes the Court, in its discretion, to award “reasonable attorney’s
fees to the prevailing party”. 17 U.S.C. § 505. A “prevailing party is one who succeeds on a
significant issue in the litigation . . . .” Thoroughbred Software Int'l, Inc. v. Dice Corp., 488 F.3d
352, 362 (6th Cir. 2007) (quoting Warner Bros., Inc. v. Dae Rim Trading, Inc., 877 F.2d 1120,
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1126 (2d Cir. 1989)). The statute grants courts wide latitude to award attorney’s fees based on the
totality of circumstances. Kirtsaeng v. John Wiley & Sons, Inc., 579 U.S. 197, 203 (2016). The
Kirtsaeng court also explained that, in Fogerty v. Fantasy, Inc., the Supreme Court “established
several principles and criteria to guide” lower courts’ decisions, including “‘several nonexclusive
factors’” such as “frivolousness, motivation, objective unreasonableness[,] and the need in
particular circumstances to advance considerations of compensation and deterrence.” Id. at 202
(alteration in original) (quoting Fogerty v. Fantasy, Inc., 510 U.S. 517, 534 n.19 (1994)). The court
must give substantial weight to the objective reasonableness of the losing parties’ claims. Id. at
210.
III. 	Analysis
Plaintiff concedes that Defendants are the prevailing party; therefore, the Magistrate Judge
need not address this matter further (Doc. No. 107 at 10). Now the Court must apply the Fogerty
factors to Defendants’ claim for attorneys’ fees.
A. 	Claim for Attorneys’ Fees
1. 	Objectively Unreasonable and Frivolous Claims
“Because objective reasonableness and frivolousness overlap, courts in this Circuit often
analyze these factors together.” White v. Sports & Custom Tees, Inc., Case No. 22-10218, 2023
WL 2810834, at *3 (E.D. Mich. Apr. 6, 2023) (citing Bliss Collection, LLC v. Latham Cos., LLC,
No. 5:20-CV-217, 2022 WL 1154600, at *5 (E.D. Ky. Apr. 19, 2022)). As courts in the Sixth
Circuit have explained, “[c]laims under the Copyright Act are ‘objectively unreasonable if “[they
are] clearly without merit or otherwise patently devoid of legal or factual basis,’” and are ‘not
objectively unreasonable if there is a “reasonable possibility” that the court would reach a different
outcome on the merits of the claim.’” Ducks Unlimited, Inc. v. Boondux, LLC, No. 2:14-cv-2885,
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2018 WL 1249912, at *4 (W.D. Tenn. Mar. 9, 2018) (second alteration in original) (quoting
Prunty v. Vivendi, 195 F. Supp. 3d 107, 112 (D.D.C. 2016)).
Defendants argue that, “[f]rom beginning to end, Plaintiff advanced arguments that were
frivolous and, at minimum, objectively unreasonable.” (Doc. No. 99 at 11.) Plaintiff counters with
two arguments. First, Plaintiff asserts that her legal position was not objectively unreasonable
because she “advanced objectively reasonable positions based on the evidence available to her at
the time” and because Defendants purportedly obfuscated evidence. (Doc. No. 107.) Second,
Plaintiff argues that her claim was not frivolous because the case was complex and novel where it
“involved unsettled questions regarding the scope of § 203 termination rights, the effect of grants
executed by a family trust, and whether the May 2000 agreement constituted a new grant.” (Id. at
13.) Plaintiff specifically asserts that, in this action, she “reasonably argued that once Jay
Livingston assigned his rights to the Family Trust in 1985, later agreements signed in his individual
capacity raised serious questions of validity.” (Id.)
To Plaintif’s first issue, the Sixth Circuit opinion on Plaintiff’s appeal succinctly
summarized the shortcomings of this argument: at the early stages of litigation, it is Plaintiff’s
obligation to allege facts that plausibly state a claim for relief. (Doc. No. 96.) Plaintiff plainly
failed to do so here and any purported opaqueness or gamesmanship, as she alludes to, does not
refute the fact that it was nevertheless her burden. Further, Plaintiff’s pleadings belie her argument
that her positions were objectively reasonable. As this Court and the Sixth Circuit explained,
Plaintiff, at best, pleaded “barebones allegations” that were plainly insufficient for some of her
arguments to survive a Motion to Dismiss under Federal Rule of Civil Procedure 12(b)(6). (Doc.
Nos. 79, 96.)
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To Plaintiff’s second argument, a sister court in this Circuit has explained that, while a
party “can reasonably posit a novel legal theory” in litigation, that argument is no longer
objectively reasonable where “the party should have known that theory has nearly no chance of
succeeding.” Stringer v. Richard, CASE NO. 4:21-cv-00632, 2023 WL 4556783, at *2 (N.D. Ohio
July 17, 2023). The Court finds this reasoning sound. Plaintiff received a probate court order in
2003 that addressed the alleged novel questions. (Doc. No. 39-3 at 9 (explaining the “preclusive
effect” of the California probate court’s order).) Cf. Bliss, 2022 WL 1154600, at *5 (finding that
“the weakness of Plaintiff’s copyright claims” weighed slightly in favor of granting attorneys’ fees
where “Plaintiff was on notice of the deficiencies of its claims prior to filing suit.”).
Even where, as here, the party opposing a grant of attorneys’ fees asserts that the
complexity and novelty of a dispute lend support to the objective reasonableness or non-
frivolousness of its legal position, those considerations do not make an opposing party’s positions
per se objectively reasonable or non-frivolous nor does it preclude a party from recovering
attorneys’ fees. Bridgeport Music, Inc. v. WB Music Corp., 520 F.3d 588, 594 (6th Cir. 2008)
(stating that “[o]bjective reasonableness is not an impenetrable shield against fees and costs.”). For
example, Plaintiff cites Everly v. Everly, Case No. 3:17-cv-01440, 2019 WL 1470603 (M.D. Tenn.
Apr. 3, 2019), for the proposition that, where a case presents “‘complex, novel and confusing
factual and legal issues[,]’” the losing party’s legal position was not frivolous. (Doc. No. 107 at
13.) But Everly is readily distinguishable. There, the Court refused to find that the party opposing
the motion for attorneys’ fees was objectively unreasonable because of the complexity and novelty
of the issues presented and because, while the party seeking attorneys’ fees there prevailed, “it was
not a ‘slam dunk . . . .’” 2019 WL 1470603, at *4. Here, the issues in question were swiftly and
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decisively decided in Defendants’ favor by this Court and the Sixth Circuit on appeal, betraying
the idea that the legal issues in question were as complex or novel. (Doc. Nos. 79, 96.)
Here, the Court finds Plaintiff’s legal position was, at minimum, frivolous insofar as she
should have known that her capacity and validity arguments had nearly no chance of succeeding.
Indeed, on the “novel” issue of Jay’s capacity to terminate grants, Plaintiff’s arguments
“collapse[d] under their own weight . . .” because those arguments “either . . . expressly
contradict[ed] documents [Plaintiff] placed squarely before the Court or they [we]re entirely
unmoored from the law.” (Doc. No. 79 at 10.) Additionally, Plaintiff’s action, in effect, sought to
relitigate a matter resolved over twenty-years ago by a probate court in California. (Doc. No. 79.)
This Court explained that, despite the California probate court’s decisive handling of questions
about Jay’s capacity to execute contracts involving the royalty rights in dispute, Plaintiff
mischaracterized the probate court’s order to suggest that questions about Jay’s capacity remained
unresolved. (Doc. No. 79.)
Considering the totality of the circumstances, the Court finds that this factor weighs in
favor of granting Defendants’ request for attorneys’ fees.
2. 	Objectively Unreasonable and Frivolous Litigation Conduct
The objective unreasonableness and frivolousness analysis also applies to the manner in
which the parties litigated the dispute. White, 2023 WL 2810834, at *5 (citing Bridgeport Music,
Inc. v. Dimension Films, 410 F.3d 792, 809 (6th Cir. 2005)). Generally, and “[t]aken in isolation
. . . , discovery disputes and delays by themselves might be viewed simply as inherent to the usual
hurly-burly of complex civil litigation.” RJ Control Consultants, Inc. v. Mulitject, LLC, Case
Number 16-10728, 2024 WL 166000, at *7 (E.D. Mich. Jan. 16, 2024), appeal dismissed by, 2024
WL 2273765 (6th Cir. Apr. 25, 2024).
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Defendants argue that this factor weighs in favor of a grant of attorneys’ fees because
Plaintiff “protracted these proceedings through objectively unreasonable litigation conduct” and
Defendants raises four ostensible examples of this unreasonableness. Defendants assert Plaintiff
acted unreasonably because she: (1) submitted filings with “‘a morass of argument and legalese[;]”
(2) filed multiple amended complaints “that grew increasingly lengthy and cumbersome” to avoid
dismissal of her claim; (3) increased the cost of discovery by both “serving overbroad discovery
and generating wasteful discovery disputes; and (4) “pursued an appeal that had no chance of
success.” (Doc. No. 99 at 12) (internal citations omitted). To the extent that Plaintiff addresses the
reasonableness of her litigation conduct, she does not dispute Defendants’ arguments as to the
filing of multiple “lengthy and cumbersome” amended complaints after dispositive motions were
filed or the overarching “morass of argument and legalese” and overbroad and wasteful discovery.
Plaintiff instead argues that Defendants’ “own litigation conduct contributed significantly to the
course and expense of the proceedings.” (Doc. No. 107 at 12.)
Plaintiff’s contentions on the matter are unpersuasive when considering whether her
litigation conduct was objectively reasonable, particularly where such conduct arose against the
backdrop of her objectively unreasonable legal position. See, e.g., WB Music Corp., 520 F.3d at
594–95 (reasoning that the continued pursuit of a claim, while futile given the judge's rejection of
the party’s legal theory, did not alone warrant attorneys’ fees until viewed as part of the larger
landscape of Bridgeport's litigation strategy). See also RJ Control Consultants, Inc., 2024 WL
166000, at *8 (finding that the party opposing the request for attorneys’ fees litigated in a manner
that warranted the grant of fees where, “[i]n addition to demonstrating factual unreasonableness,
. . . the plaintiffs repeatedly [ ] advanced legal arguments with no colorable merit . . . .”);
Bridgeport Music, Inc. v. Dimension Films, 401 F.3d 647, 665 (6th Cir. 2004) (holding that, where
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plaintiffs’ and defendants’ litigation tactics both “contributed to the multiplication of fees by all
parties, 	that 	consideration 	“combined 	with 	the determination 	that 	[plaintiff’s] 	claim 	was
objectively unreasonable, merits an award for fees and costs against [plaintiff].”).
Considering the parties’ arguments, the Court finds that Plaintiff’s litigation conduct
weighs in favor of granting Defendants’ request for attorneys’ fees. As the Court previously
explained, Plaintiff sought to submit amended complaints multiple times after Defendants filed
dispositive motions and yet, despite receiving leave of the Court, the operative Second Amended
Complaint was “a morass of argument and legalese” that had at least one “significant shortcoming”
as evidenced by Plaintiff’s decision to plead issues for the first time in her brief in opposition to
Defendants’ Motion to Dismiss. (Doc. No. 79 at 8, 15.) The Court further found several instances
of Plaintiff mischaracterizing documents on the record, incorrectly describing federal statute and
regulations, and failing to sufficiently plead arguments on which Plaintiff relied. (Doc. No. 79.)
Finally, the Court finds that, while both parties were in ways responsible for needless conflict and
delay throughout this litigation (Doc. No. 72), it was Plaintiff’s litigation posture that caused the
need for multiple discovery dispute conferences and otherwise prolonged this litigation despite her
argument turning on an issue decided over twenty years prior.
In sum, Plaintiff was objectively unreasonable in many aspects of how she conducted
litigation in this matter and, subsequently, the Court finds this factor weighs in favor of granting
Defendants attorneys’ fees.
3. 	Plaintiff’s Motivation
In the Sixth Circuit, when applying Fogerty, “courts use ‘four non-exclusive factors to
determine whether to award attorney's fees in a copyright action’” including “motivation.”
Treadway Gallery, Inc. v. John Toomey Gallery, Inc., Case No. 1:19-cv-00664, 2023 WL
12217102, at *1 (S.D. Ohio Mar. 31, 2023) (quoting Balsley v. LFP, Inc., 691 F.3d 747, 771 (6th
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Cir. 2012)). Defendants did not substantively address Plaintiff’s motivation for filing the instant
action in its brief and, while Defendants speculated as to reasons Plaintiff’s motivations could be
seen as improper, the Court finds that Defendants have not sufficiently shown that this factor
weighs in favor of granting the Renewed and Supplemental Motion for Attorneys’ Fees.
4. 	Advancement of Considerations of Compensation and Deterrence
The final factor for consideration is whether a decision on a grant of attorneys’ fees furthers
the Copyright Act by either granting a party compensation for their litigation efforts or levying
attorneys’ fees as a form of deterrence. The Supreme Court has stated that the objectives of the
Copyright Act “are well settled” because “‘copyright law ultimately serves the purpose of
enriching the general public through access to creative works.’” Kirtsaeng, 579 U.S. at 204
(quoting Fogerty, 510 U.S., at 527).
Here, Defendants offer little in support of this argument except to state that attorneys’ fees
for the purpose of deterrence are “particularly important here given (1) the speciousness of
Plaintiff’s claims and (2) the fact that this action is just a piece of a larger, unwarranted litigation
campaign against Defendants . . . .” (Doc. No. 99 at 12.) Plaintiff argues that an award of attorneys’
fees would not further the goals of the Copyright Act, particularly because considerations of
compensation and deterrence are “inextricably tied to the reasonableness or frivolousness of the
parties’ positions and their motivations in litigating the dispute.” (Doc. No. 107 at 15–16.) Plaintiff
further argues that an award of attorneys’ fees would fail to further the goals of the Copyright Act
because Defendants enjoy a superior financial position and the proposed attorneys’ fees would
subject Plaintiff to “financial hardship and threaten her very survival” for no other reason than
Plaintiff 	“sought 	only 	to 	preserve 	her 	grandfather’s 	testamentary 	intent 	under 	difficult
circumstances . . . .” (Id. at 16, 17.)
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As explained above, the Court finds that Plaintiff took objectively unreasonable legal
positions and litigated the matter in a similarly unreasonable manner. Because, as Plaintiff notes,
the question of compensation and deterrence “is inextricably tied” to such findings, this factor
weighs in favor of granting attorneys’ fees. And, even where Plaintiff asserts that any award of
attorneys’ fees would be a financial burden bordering on an existential threat to her livelihood,
courts have explained that “[a]n ability—or lack thereof—to pay a fee award is not one of the
factors specifically identified in determining whether to award fees under the Copyright Act.”
Miller v. Hurst, Case No. 3:17-cv-00791, 2021 WL 859552, at *5 (M.D. Tenn. Mar. 8, 2021). The
Sixth Circuit has tempered that approach where a litigant proceeds pro se, but that is not at issue
in this matter. Id. at *6.
Under the totality of the circumstances, the Court finds that this factor weighs in favor of
granting Defendants attorneys’ fees because, while such approval need not necessarily be aimed
at deterring parties from initiating action under the Copyright Act seeking declaratory judgment,
it ensures that parties can recover attorneys’ fess where an action is needlessly litigated despite
early indications that the claims are unreasonable and/or frivolous.
Having considered this and other factors, the Court finds that, under the totality of the
circumstances, Defendants’ request for attorneys’ fees should be granted.
B. 	Reasonableness of Attorneys’ Fees Requested
The Copyright Act provides for an award, in district courts’ discretion, of attorneys’ fees
where those fees are reasonable. 17 U.S. Code § 505. Having concluded that the Court should
grant Defendants’ Renewed and Supplemental Motion for Attorneys’ Fees, the lone outstanding
question is whether Defendants’ designated fees are objectively reasonable. In interpreting Sixth
Circuit precedent, courts in the Circuit have explained that “[d]istrict courts maintain broad
discretion to determine the reasonableness of an attorney’s hourly rate as a component of the
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lodestar computation[,]” and, “[t]o make that determination, the Court must assess ‘the prevailing
market rate in the relevant community,’ which is ‘that rate which lawyers of comparable skill and
experience can reasonably expect to command within the venue of the court of record.’” In Re:
Fam. Dollar Stores, Inc., Pest Infestation Litig., No. 2:22-md-3032, 2024 WL 2806477, at *1
(W.D. Tenn. May 31, 2024) (first quoting Wayne v. Vill. of Sebring, 36 F.3d 517, 533 (6th Cir.
1994), and then citing Adcock-Ladd v. Sec'y of Treasury, 227 F.3d 343, 350 (6th Cir. 2000)).
Moreover, district courts are instructed to exercise such discretion, in part, “based upon the factors
listed in the district court's order, such as, frivolousness of the claim, motivation, reasonableness,
and deterrence.” Coles v. Wonder, 283 F.3d 798, 804 (6th Cir. 2002) (citing Fogerty, 505 U.S. at
534 n.19)).
In calculating their proposed attorneys’ fees award, the Defendants rely on the declarations
of lead counsel Tim Warnock (Doc. No. 100) and Defendants’ transactional counsel Owen Sloane
(Doc. No. 101). After “multiplying the number of hours reasonably expended on the litigation by
a reasonable hourly [billing] rate” (Doc. No. 99 at 13 (citing Hensley v. Eckerhart, 461 U.S. 424,
433 (1983)), Defendants have requested an award of $385, 979.05 in attorneys’ fees (id.). Plaintiff,
though preliminarily disputing that attorneys’ fees are warranted, argues that the proposed fees
award is unreasonable and any awards granted “should be significantly reduced from the amount
Defendants have requested.” (Doc. No. 107 at 17.)
Disputing the award sought, Plaintiff recognizes that the lodestar calculation is the starting
point, but in arguing the purported unreasonableness of Defendants’ request, she glaringly omits
that the Sixth Circuit considers lodestar calculations “presumptively reasonable” where “‘the party
seeking the attorney fees has established that the number of hours and the rate claimed are
reasonable . . . .’” McGruder v. Metro. Gov’t of Nashville & Davidson Cnty., NO. 3:17-cv-01547,
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2022 WL 2975298, at *2 (M.D. Tenn. July 27, 2022) (Campbell, C.J.) (quoting Imwalle v.
Reliance Med. Prod., Inc., 515 F.3d 531, 552 (6th Cir. 2008)).
Where, as here, the party opposing a grant of attorneys’ fees contests the lodestar
calculation, “[c]ourts in the Sixth Circuit may consider a variety of factors in determining the
appropriateness of a departure from the lodestar amount.” Id. Specifically, courts have examined
the following:
(1) the time and labor required; (2) the novelty and difficulty of the questions;
(3) the skill requisite to perform the legal service properly; (4) the preclusion of
other employment by the attorney due to acceptance of the case; (5) the customary
fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the
client or the circumstances; (8) the amount involved and the results obtained;
(9) the experience, reputation, and ability of the attorneys; (10) the “undesirability”
of the case; (11) the nature and length of the professional relationship with the
client; and (12) awards in similar cases.
Id. (citing Barnes v. City of Cincinnati, 401 F.3d 729, 745–46 (6th Cir. 2005)).
Here, Plaintiff raises three distinct arguments. First, Plaintiff argues that the fees sought
are unreasonable because Sloane claims on behalf of Eisner LLP (the Eisner Firm) a billing rate
of $650 per hour when “the reasonable community market rate in Nashville-Davidson County,
Tennessee” is actually $501 per hour, which is Warnock’s “actual billed effective rate[.]” (Doc.
No. 107 at 19.) In support of this argument, Plaintiff offers no support and merely states in a
conclusory manner that “[t]he Eisner hourly rates are considerably higher, and are therefore
unreasonable.” (Id.) But see Bridgeport Music, Inc. v. Lorenzo, 255 F.Supp.2d 795, 799–800 (M.D.
Tenn. 2003) (finding the prevailing party’s asserted cost of attorneys’ fees was reasonable where
“[t]he plaintiffs [offered no] evidence to support their claim that the rates sought by the defendant's
counsel [we]re unreasonable or to contradict any of the facts attested to in counsel's declaration”
and the private attorneys seeking to be compensated “ha[ve] well-defined billing rates . . . .”).
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Plaintiff next asserts that the fees sought should be, at minimum, reduced because the
Eisner Firm engaged in the litigation as “an undisclosed ‘shadow firm’” of which Plaintiff was
unaware and because Warnock’s firm, Loeb & Loeb LLP, and Sloane and his colleagues at the
Eisner Firm duplicated billing time entries that would skew an accurate accounting of attorneys’
fees. (Doc. No. 107 at 20, 21.) In their reply, Defendants state that Plaintiff has failed to support
her proposition. The Court agrees. Plaintiff raises a number of arguments in support but, as with
her first objection, she has failed to point the Court to factual or authoritative support for her
position. “As the Sixth Circuit stated: ‘[t]he key requirement for an award of attorneys fees is that
the documentation offered in support of the hours charged must be of sufficient detail and
probative value to enable the court to determine with a high degree of certainty that such hours
were actually and reasonably expended in the prosecution of the litigation.’” Corbis Corp. v. Starr,
719 F. Supp. 2d 843, 844 (N.D. Ohio 2010) (quoting Imwalle v. Reliance Med. Prods., Inc., 515
F.3d 531, 553 (6th Cir.2008)).
In support of her argument, Plaintiff states:
the court in Fharmacy Records v. Nassar made clear, “[d]efendants were free to
hire as many lawyers as [they] saw fit . . . [t]hat is not to say, however, that they
should be allowed to recover all attorney fees incurred . . . it is the burden of the
party seeking the recovery of attorney fees to establish the reasonableness of its
request.” 729 F. Supp. 2d 865, 891 (E.D. Mich. 2010), aff’d, 465 F. App’x 448 (6th
Cir. 2012)
(Doc. No. 107 at 21.) But Plaintiff once again fails to recognize the factual discrepancies
that distinguish her sole cited authority from the factual basis found here. In Fharmacy
Records, the district court found that the party seeking fees did so with the assistance of a
“firm as a conduit and intermediary between itself and its attorneys . . . .” 729 F. Supp. 2d
at 891.
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In seeking attorneys’ fees in the instant case, Defendants put forth evidence that attorneys
from two separate firms expended time working on this matter as counsel, not as conduits or
intermediaries. (Doc. Nos. 100–100-5, 101–101-1.) Lacking sufficient evidence to suggest the
situation here is comparable to caselaw denying an award of attorneys’ fees for the involvement
of so-called “shadow firms,” the Court finds that Defendants have met their burden in pleading for
attorneys’ fees and Plaintiff has failed to offer sufficient contradictory evidence warranting denial
of Defendants’ request. Cf. Corbis Corp., 719 F. Supp. 2d at 845 (denying attorneys’ fees, in part,
where the party seeking the award “attache[d] invoices to its motion” that “provide[d] little detail
as to what work counsel performed.”).
Finally, Plaintiff argues that, if attorneys’ fees are warranted, the amount sought should be
reduced because attorneys from Loeb & Loeb and the Eisner Firm duplicated time and billing and
Defendants’ counsel utilized timekeeping via “block billing.” (Doc. No. 107.) In her opposition to
Defendants’ attorneys’ fees motion, Plaintiff ultimately argues that defense counsel’s billing
invoices are fatally vague or redundant. (Doc. No. 107.) But, as discussed above, Plaintiff has
pointed to no evidence—other than the simple timekeeping method of block billing—that indicates
“the documentation offered in support of the hours charged” are not “of sufficient detail and
probative value to enable the court to determine with a high degree of certainty that such hours
were actually and reasonably expended in the prosecution of the litigation.” Corbis Corp., 719 F.
Supp. 2d at 844. The Court finds that Defendants’ submitted sufficient documentation to allow the
Court to have a high degree of certainty that the hours billed were reasonably expended in the
course of counsel’s duties.
Considering the parties’ arguments, the Court finds that attorneys’ fees are warranted and
the amount sought is reasonable under the Copyright Act.
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IV. 	Recommendation
For the foregoing reasons, the Magistrate Judge RECOMMENDS that Defendants’
Renewed and Supplemental Motion for Attorneys’ Fees (Doc. No. 98) be GRANTED.
Any party has fourteen days after being served with this Report and Recommendation to
file specific written objections. Failure to file specific objections within fourteen days of receipt
of this Report and Recommendation can constitute a waiver of appeal of the matters decided.
Thomas v. Arn, 474 U.S. 140, 155 (1985); Cowherd v. Million, 380 F.3d 909, 912 (6th Cir. 2004).
A party who opposes any objections that are filed may file a response within fourteen days after
being served with the objections. Fed. R. Civ. P. 72(b)(2).
Entered this 2nd day of March, 2026.
____________________________________
LUKE A. EVANS
United States Magistrate Judge
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