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Marcus v. ABC Signature Studios, Inc.

United States District Court, C.D. California

November 20, 2017

DAVID LLOYD MARCUS, Plaintiff,
v.
ABC SIGNATURE STUDIOS, INC.; KHALABO INK SOCIETY; KENYA BARRIS; DOES 1-10, Defendants.

          ORDER RE: DEFENDANTS' MOTION FOR ATTORNEYS' FEES [45]

          HON. RONALD S.W. LEW, Senior U.S. District Judge

         Plaintiff David Lloyd Marcus (“Plaintiff”) brought the instant Action against Defendants ABC Signature Studios, Inc. (“ABC”); Khalabo Ink Society (“Khalabo”); and Kenya Barris (“Barris”) (collectively, “Defendants”) alleging copyright infringement and unfair competition. Defendants moved to dismiss Plaintiff's Complaint, and the Court granted Defendants' Motion to Dismiss on September 13, 2017. Currently before the Court is Defendants' Motion for Attorneys' Fees [45]. Having reviewed all papers submitted pertaining to this Motion, the Court NOW FINDS AND RULES AS FOLLOWS: Defendants' Motion for Attorneys' Fees is GRANTED.

         I. BACKGROUND

         A. Factual Background

         In February 2013, former Defendant Overbrook and ANA Alliance sponsored a script-writing contest called “Search for America's Newest Screenwriter.” Compl. ¶ 9, ECF No. 1. On March 20, 2013, Plaintiff submitted a script called Across the Tracks (“Across the Tracks” or the “Script”) to the contest. Id. ¶ 10. In November 2014, Plaintiff submitted the Script to the United States Copyright Office and received the exclusive rights and privileges to the Script. Id. ¶ 17. Plaintiff alleges he never heard from the contest creators on the status of his submission. Id. ¶ 12.

         Plaintiff alleges that former Defendant Will Smith is the owner of former Defendant Overbrook, the sponsor of “Search for America's Newest Screenwriter.” Id. ¶ 4. Plaintiff further alleges that Mr. Smith developed a close business relationship with Defendant Barris after working with Barris on various television projects. Id. ¶¶ 15-16.

         In the fall of 2014, ABC released a pilot called Black-ish, created by Barris and produced by Khalabo. Id. ¶ 18. Plaintiff alleges Black-ish is virtually identical to Across the Tracks, including the major characters, thematic points, and plot turns. Id. ¶¶ 18-19. Subsequently, Plaintiff initiated his Action in this Court against Defendants alleging copyright infringement under the Copyright Act of 1976 and unfair competition under the Lanham Act of 1946, and seeking declaratory and injunctive relief.

         B. Procedural Background

         On January 6, 2017, Plaintiff filed his Complaint [1]. On April 26, 2017, the parties stipulated and this Court granted Plaintiff leave to file an amended complaint within five days of the Court's order and gave Defendants fourteen days to respond to the amended complaint. Plaintiff did not file an amended complaint within the timeline prescribed.

         On April 11, 2017, the parties filed a Stipulation to Dismiss Defendants Overbrook and Will Smith [25]. The Court dismissed Defendants Overbrook and Will Smith on April 20, 2017 [28].

         On May 11, 2017, Plaintiff's counsel filed a Motion to Withdraw as Attorney requesting to be relieved as counsel because of a disagreement that arose between counsel and Plaintiff which rendered counsel's ability to represent Plaintiff difficult. Mot. to Withdraw 3:12-16, ECF No. 31. The Court granted the Motion to Withdraw on June 7, 2017. ECF No. 40.

         On May 22, 2017, Defendants filed their Motion to Dismiss [35], and on July 17, 2017, Defendants filed a Motion to Strike and for Sanctions (“Motion to Strike”) [42]. On September 13, 2017, the Court granted Defendants' Motion to Dismiss without leave to amend. ECF No. 44.

         Following the Court's grant of Defendants' Motion to Dismiss, on September 15, 2017, defense counsel contacted Plaintiff to discuss Defendants' anticipated motion for attorneys' fees. Decl. of Justin M. Goldstein (“Goldstein Decl.”) ¶ 27, ECF No. 45-1. On September 18, 2017, Plaintiff emailed defense counsel informing him that he had obtained new counsel. Id. ¶ 28. Defense counsel spoke with Plaintiff's new counsel, Cory Aronovitz, and informed him of Defendants' intent to recover all of their attorneys' fees to date. Id. ¶ 29. Defense counsel also informed Mr. Aronovitz that if Plaintiff ceased pursuing his claims, Defendants would forgo seeking to recover their attorneys' fees and costs. Id. ¶ 30.

         On September 20, 2017, Mr. Aronovitz informed defense counsel that Plaintiff would agree to forgo his claims in exchange for Defendants' forgoing seeking their fees. Id. ¶ 32. Consequently, defense counsel prepared a draft agreement and sent it to Mr. Aronovitz on September 21, 2017. Id. ¶ 33. The next day, defense counsel received an email from Mr. Aronovitz stating that Mr. Aronovitz no longer represented Plaintiff. Id. ¶ 34. Plaintiff then emailed defense counsel with a six-figure settlement demand. Id. ¶ 35.

         Defense counsel sent Plaintiff a letter summarizing defense counsel's prior conversation with Mr. Aronovitz and offering to speak with Plaintiff directly concerning the anticipated Motion for Attorneys' Fees. Id. Defense counsel did not receive a response to this letter. Id.

         On September 27, 2017, Defendants filed their Motion for Attorneys' Fees [45]. Plaintiff's Opposition was due on October 17, 2017, but Plaintiff did not file an Opposition.

         II. ...


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