United States District Court, C.D. California
ORDER RE: DEFENDANTS' MOTION FOR ATTORNEYS'
RONALD S.W. LEW, Senior U.S. District Judge
David Lloyd Marcus (“Plaintiff”) brought the
instant Action against Defendants ABC Signature Studios, Inc.
(“ABC”); Khalabo Ink Society
(“Khalabo”); and Kenya Barris
“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 . Having reviewed all papers
submitted pertaining to this Motion, the Court NOW
FINDS AND RULES AS FOLLOWS: Defendants' Motion
for Attorneys' Fees is GRANTED.
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.
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.
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.
January 6, 2017, Plaintiff filed his Complaint . 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.
April 11, 2017, the parties filed a Stipulation to Dismiss
Defendants Overbrook and Will Smith . The Court dismissed
Defendants Overbrook and Will Smith on April 20, 2017 .
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.
22, 2017, Defendants filed their Motion to Dismiss , and
on July 17, 2017, Defendants filed a Motion to Strike and for
Sanctions (“Motion to Strike”) . On September
13, 2017, the Court granted Defendants' Motion to Dismiss
without leave to amend. ECF No. 44.
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.
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.
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.
September 27, 2017, Defendants filed their Motion for
Attorneys' Fees . Plaintiff's Opposition was due
on October 17, 2017, but Plaintiff did not file an