In a previous blog, I wrote about the case of DuBay v. King, in which the alleged heir of the rights to the comic book The Rook sued author Stephen King — and anyone who had ever been in the same room with him — for infringement. The case was dismissed on summary judgment after an analysis proved there was no infringement.
Just days after that ruling, the defendants (Stephen King, MRC II Distribution Company L.P., Imagine Entertainment, Simon & Schuster, and Sony Pictures) filed a motion for attorney’s fees. They sought fees totalling over $1.6 million, and they could have been more had the defendants not been so dead-set on prevailing. Because the US Supreme Court recently held in Rimini Street that expert witness fees, photocopy costs, and other expenses were not collectible as part of an award for attorney’s fees, the defendants omitted photocopy costs, investigation costs, and paralegal costs from the amount they sought to recover from this plaintiff.
In my opinion, this request for attorney’s fees is more than justified. The defendant, Benjamin Michael DuBay, is a trained paralegal and began the case with a torrent of questionable motions. As the motion points out, determination of attorneys fees is in the court’s discretion, but should be guided by the “non-exclusive” factors of frivolousness, motivation, unreasonableness and the need for compensation and deterrence.
It would seem that DuBays’ actions covered all of those bases, and more:
- After a witness backed out, DuBays filed a sanctions motion for witness tampering against defendant Marvel.
- When the defense presented DuBays with unflattering evidence, he filed a sanctions motion alleging perjury by the defense counsel.
- When an expert called one of his documents a forgery, DuBays tried to report him to the FBI.
Evidently, even the judgment against him has not stopped Mr. DuBay from seeking to use the legal system in an ostensibly harassing manner. As the motion notes:
Even after entry of judgment, Plaintiff announced on March 11, 2019 a forthcoming campaign of vexatious litigation intended to punish the parties, their attorneys, and witnesses in this action.
It seems that the plaintiff, in his enthusiasm to go up against “the big guns,” thought that every tactic possible should be used to bring about the outcome he wanted — without any measure of civility, reasonableness, or likeliness to succeed. I agree with the motion when it says that this plaintiff, in particular, should be deterred from using these types of tactics in the future.
