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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 14-11795
Non-Argument Calendar
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D.C. Docket No. 1:12-cv-22768-PAS
MALIBU MEDIA, LLC,
Plaintiff - Appellee,
versus
LEO PELIZZO,
Defendant - Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(March 26, 2015)
Before JULIE CARNES, FAY, and COX, Circuit Judges.
PER CURIAM:
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This is an attorney’s fees dispute arising out of copyright infringement
litigation. The underlying case ended when the district court dismissed with
prejudice the infringement claims that the Plaintiff, Malibu Media, LLC
(“Malibu”), asserted against the Defendant, Leo Pelizzo (“Pelizzo”). (DE40).
Pelizzo moved for prevailing-party fees under the Copyright Act, 17 U.S.C. § 505,
and vexatious-litigation fees under 28 U.S.C. § 1927. The magistrate judge issued
a report and recommendation, recommending that Pelizzo receive fees and costs in
the amount of $6,815.50 under Section 1927, but no prevailing-party fees under the
Copyright Act. (DE53). Pelizzo timely filed objections with the district court.
After considering and overruling each of Pelizzo’s objections, the district judge
adopted the report and recommendation without change. (DE58). Pelizzo appeals,
challenging only the district court’s failure to award him prevailing-party fees
under the Copyright Act. We have jurisdiction and we affirm.
I. FACTS AND PROCEDURAL BACKGROUND
As necessary to resolve this appeal, the facts and procedural background can
be summarized briefly. Malibu claimed in a Complaint filed on July 27, 2012, and
served on Pelizzo on September 5, 2012, that Pelizzo was infringing Malibu’s
copyright to a number of films by repeatedly downloading them through an
internet protocol address. The address was allegedly assigned to Pelizzo by
Hotwire Communications, the internet service provider to a 700-unit condominium
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complex in which Pelizzo owned a unit. The unit was not his residence. Pelizzo
denied the facts giving rise to the claim. After a March 13, 2013, Rule 30(b)(6)
deposition of Hotwire, Malibu was persuaded that its allegations probably could
not be proved and offered to dismiss the lawsuit with prejudice. Pelizzo’s counsel
responded that it would agree to a dismissal, but only if Malibu paid the $17,500 in
attorney’s fees his client had incurred. Malibu’s counsel responded with what he
admits was a “knee-jerk” e-mail promising to continue the case against Pelizzo.
By copy of the e-mail, Malibu’s counsel directed his paralegal to prepare written
discovery, which was immediately served on Pelizzo and was later withdrawn.
Malibu also asked for dates for Pelizzo’s deposition.
At an April 4, 2013, mediation, the only issue negotiated was fees owed
Pelizzo. Malibu again informed Pelizzo’s counsel that it would be dismissing the
case. On April 11, Malibu offered to pay Pelizzo $13,000 for his attorney’s fees.
Pelizzo’s counsel rejected the offer because, according to him, fees incurred by his
client now were at $24,000, rather than the $17,500 figure following the March
Hotwire deposition. Malibu moved to dismiss with prejudice anyway, and the
district court granted the motion on June 4, reserving Pelizzo’s right to seek
attorney’s fees and costs.
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II. CONTENTIONS OF THE PARTIES
AND STANDARD OF REVIEW
Pelizzo contends that the district court improperly failed to award him fees
as a prevailing party under the Copyright Act, 17 U.S.C. § 505.1 This statute
authorizes an award of attorney’s fees to a prevailing party. The amount of fees is
determined in the court’s discretion and in accordance with the “Fogerty factors.”
See Fogerty v. Fantasy, Inc., 510 U.S. 517, 114 S. Ct. 1023 (1994). We review the
district court’s award for an abuse of discretion, MiTek Holdings, Inc. v. Arce
Eng’g Co., 198 F.3d 840, 842 (11th Cir. 1999), and reverse only if the district court
has made a “clear error in judgment.” McMahan v. Toto, 256 F.3d 1120, 1129
(11th Cir. 2001).
III. DISCUSSION
We find no abuse of discretion in the district court’s conclusion under
Section 505 and Fogerty that Malibu’s subjective motivation for filing suit was not
improper or that the suit was not frivolous, the first two Fogerty factors. To
whomever the subject IP address was subscribed, it is undisputed that a genuinely
phenomenal number of films was being downloaded using it. Malibu tried to
contact Pelizzo before filing suit, offered to run the problem to ground informally
before instituting extensive discovery, and never made a monetary demand upon
1
Pelizzo contends that the district court based its Copyright Act fee denial on clearly
erroneous findings of fact. We have reviewed the record and find this contention to be without
merit.
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him. Because of the nature of the films, Pelizzo justly was ashamed to be a part of
the litigation, but the magistrate judge found no record evidence that Malibu sued
him for that reason, and Pelizzo has not presented any such evidence. Using
detection methods it had used hundreds of times before, Malibu determined that
the IP address apparently assigned to Pelizzo was the vehicle for the infringements
and acted accordingly.
We also find no abuse of discretion in the district court’s conclusion that
Malibu, up to a point, acted in an objectively reasonable manner and in a manner
that served the purposes of the Copyright Act: compensation and deterrence.2
Contrary to Pelizzo’s assertion, Malibu could not have been expected simply to
take his word for the fact that he had not infringed Malibu’s copyrights, given the
substantial evidence implicating Pelizzo.
As for considerations of compensation and deterrence, we evaluate those
factors as “inextricably intertwined” with the reasonableness and frivolity of
Malibu’s claims. If Malibu’s claims were properly brought and properly
maintained, then they properly served the purposes of the Copyright Act.
2
We say “up to a point” because the district court evaluated Malibu’s liability for
vexatious-litigation fees under 28 U.S.C. § 1927 beginning after the “knee-jerk” email sent by
Malibu’s counsel.
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IV. CONCLUSION
We find no abuse of discretion in the district court’s decision to deny Pelizzo
prevailing-party Copyright Act attorney’s fees.
AFFIRMED. 3
3
We deny Malibu’s motion for attorney’s fees filed in this court under Fed. R. App. P. 38
and 28 U.S.C. § 1927 for having to defend Pelizzo’s appeal. While we affirm the district court’s
order denying Pelizzo’s request for prevailing-party fees under the Copyright Act, his appeal is
not frivolous.
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