reported at 798 F. Supp. 981 (S.D.N.Y. 1992). Plaintiff claimed $ 71,480 in actual damages under the Copyright Act. She claimed the same amount on her Lanham Act and New York General Business Law claims, also pleaded in the complaint and submitted to the Court for decision. Under the Copyright Act plaintiff also claimed profits in the amount of $ 5,987 against Taylor and $ 6,987 against Caldwell. She claimed $ 100,000 in punitive damages against all defendants on her state law claim for unfair competition. In the alternative, plaintiff claimed statutory damages under the Copyright Act in the maximum amount of $ 50,000.
I rejected plaintiff's claims for actual damages, under all three applicable statutes, as not proven. I awarded the claimed profits against Taylor and Caldwell, but rejected plaintiff's claim for punitive damages, and reduced the statutory damages claim from $ 50,000 to $ 30,000. Defendants noticed an appeal but then withdraw it.
Much of the trial was devoted to plaintiff's unsuccessful effort to prove actual damages. The subject formed a major part of Childress's testimony, and her agent, Flora Roberts, was called to give expert testimony in support of the claim. I rejected the claim in its entirety. See 798 F. Supp. at 989-93.
The rejection of plaintiff's claims for actual and punitive damages and the scaling down of her claim for statutory damages demonstrate that at the trial on damages, plaintiff did not "prevail" on major issues. The fee claim must accordingly be reduced to reflect the fact that plaintiff's litigation success was only partial.
I have considerable discretion in dealing with such circumstances. "The district court may attempt to identify specific hours that should be eliminated, or it may simply reduce the award to account for the limited success." Hensley at 436-37. In the case at bar, I am assisted by the careful allocations of effort contained in the Blasband affidavit. 691.4 hours are claimed at a total value of $ 125,630.50. Id. at P 12. Of that time, preparation and trial of the damages claims consumed 262.9 hours and post-trial briefs 106.7 hours. Id. at PP 22, 23. Thus 369.6 hours are ascribable to the damages trial. I will disallow two thirds of that time to reflect plaintiff's limited success on damages. That is appropriate, where plaintiff sought to collect over $ 170,000 and obtained judgment for less than $ 43,000; and much of the trial proof related to claims upon which plaintiff failed to recover anything.
The balance of the claimed time is fully recoverable. That is 321.8 hours (691.4 less 369.6). One third of the trial time is 123.2 hours, which when added to 321.8 hours gives an allowable total of 445 hours. The Blasband affidavit establishes an average hourly fee of $ 181.70. The result is an allowable fee of $ 80,856.50.
Defendants make a number of arguments in support of their contention that Childress should receive no attorney's fees whatsoever, notwithstanding her complete success on the injunction and partial success on damages. Those arguments are unsupported by pertinent authority and on occasion disregard the Court's prior findings. I reject them without further discussion.
Plaintiff may recover $ 80,856.50 in attorney's fees from defendants Taylor, The Moms Company, Berkowsky and Caldwell. Because Taylor, Berkowsky and Caldwell were all willful infringers, see 798 F. Supp. at 994-96, the liability of these defendants is joint and several. Fitzgerald Publishing Co., Inc. v. Baylor Publishing Co., Inc., 807 F.2d 1110, 1117 (2d Cir. 1986).
Settle judgments consistent with this opinion on seven (7) days' notice within fourteen (14) days.
Dated: New York, New York
November 3, 1993
CHARLES S. HAIGHT, JR.
UNITED STATES DISTRICT JUDGE
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