OPINION

ROBERT W. SWEET, U.S.D.J.

Plaintiff Yurman Design Inc.("Yurman") has moved, pursuant to Rule 54 of the Federal Rules of Civil Procedure and 17 U.S.C. § 505 of the United States Copyright Act, for an award of attorneys' fees and costs incurred in preparing and litigating its original fee application, against defendant PAJ, Inc. ("PAJ"), in the amount of $120,044.84. PAJ has opposed the application on jurisdictional and other related grounds. For the reasons stated, fees and costs are awarded in the amount of $24,008.97.

Parties and Prior Proceedings

The parties and proceedings relevant to the original fee application are set forth in this Court's opinion of December 13, 2000 (the "December 2000 Order"), familiarity with which is presumed. Yurman Designs, Inc. v. PAJ, Inc., 125 F. Supp.2d 54. In that opinion, the Court awarded Yurman $234,318.73 in fees and costs pursuant to 17 U.S.C. § 505 of the Copyright Act — roughly 20% of the actual billed amount.

On December 19, 2000, Yurman requested leave to file a supplemental application for attorney fees and costs in connection with fees and costs incurred in preparing and litigating the original application. That request was granted. Yurman then appealed the December 2000 Order to the Second Circuit on January 11, 2001. The instant motion was marked fully submitted on March 28, 2001.

Facts

Yurman here seeks fees and costs it incurred and was billed in connection with preparing its fee application, in the amount of $108,899.06 in fees and $11,145.78 in costs, for a total award of $120,044.84. The requested fee amount represents 84.75 hours billed by partners at an average rate of $439.22 per hour. The fees requested also reflect 288.25 hours in associate time, at an average rate of $232.14 per hour, and 51.5 hours of paralegal time, at an average rate of $92.14 per hour. The time records were prepared contemporaneously with the rendering of legal services.

Conclusions

The Court May Award Fees For the Fee Application

A district court may award fees associated with the initial fee application and associated litigation under the Copyright Act. See Matthew Bender Co. v. Hyperlaw, Inc., No. 94 Civ. 589, 1999 WL 1211836, at *4 n. 1 (S.D.N.Y. Dec. 16, 1999) vacated on other grounds, 240 F.3d 116 (2d Cir. 2001) (in a copyright infringement case, court awarded to prevailing party fees incurred in preparing the fee application, and explained that the Supreme Court and Second Circuit have awarded costs incurred in preparing an application for attorneys' fees) (citations omitted); see also INS v. Jean, 496 U.S. 154 (rejecting argument that though fees associated with the fee application are appropriate, those associated with litigation over the application should require a separate showing of "substantial justification" under the Equal Access to Justice Act); Weyant v. Okst, 198 F.3d 311, 316 (holding that "a reasonable fee should be awarded for time reasonably spent in preparing and defending an application for § 1988 fees" and that "[a]s a general matter, such "motion costs should be granted whenever underlying costs are allowed."" (quoting Valley disposal, Inc. v. Central Vermont Solid Waste Management District, 71 F.3d 1053, 1060 (2d Cir. 1995)).

The Pending Appeal of the Original Fee Award Does Not Divest this Court of Jurisdiction to Award Fees Associated With the Original Fee Award

PAJ's first objection to Yurman's supplemental fee application is that this Court no longer has jurisdiction to grant the supplemental application for fees because Yurman has filed a notice of appeal of the December 2000 Order (which awarded Yurman fees and costs in association with the underlying copyright case.)

In Peterson v. Foote, No. 83-CV-153, 1994 WL 116450 (N.D.N.Y. March 23, 1994), aff'd, 48 F.3d 1212 (2d Cir. 1994), the court explained that although a filing of a notice of appeal typically transfers the case from the district court to the court of appeals, "a district court may retain jurisdiction to determine matters collateral to the final judgment" such as an application for attorneys' fees, which is "`uniquely separable from the cause of action to be proved at trial.'" Id. (quoting White v. New Hampshire Dep't of Employment Security, 455 U.S. 445, 452 (1982)). Here, Yurman's application concerns fees that were not at issue in the December 2000 Order, and thus are not at issue on the appeal.

Here, the question is whether the filing of an appeal of an order awarding attorneys' fees divests the district court of jurisdiction to entertain an application for fees associated with the original application for fees. Because fee awards are collateral to an underlying judgment (and thus the district court is not divested of jurisdiction to award fees even when a notice of appeal has been filed), (see, Peterson v. Foote, No. 83-CV-153, 1994 WL 116450, at *2 (N.D.N.Y. March 23, 1994), aff'd, 48 F.3d 1212 (2d Cir. 1994)), by extension, a fee award associated with the original application is collateral to the original award and therefore an appeal of the original award does not divest the district court of jurisdiction to decide the issue of fees relating to the original application for fees.

The cases PAJ cites are inapposite because they do not concern an application for fees or other collateral matter. See Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 56 (1982) (concerning petition for certiorari on issue of validity of notice to appeal filed while a motion to alter or amend a judgment is pending); Marrese v. American Academy of Orthopaedic Surgeons, 470 U.S. 373, 379 (1985) (holding that appeal of a criminal contempt order concerning non-compliance with a discovery order does not "transfer jurisdiction over the entire case to the court of appeals"). PAJ's additional citations are to two procedural rules which it represents as the only exceptions to the jurisdictional impact of a notice of appeal — Fed.R.Civ.P. 62(c) and Fed.R.App.P. 8(a). Here, the applicable exception is determination of attorneys' fees (see Peterson v. Foote) which makes those cases inapplicable.

PAJ then cites two cases for the proposition that, once a notice of appeal is filed, the district court cannot adjudicate the merits anew. In Toliver v. County of Sullivan, 957 F.2d 47 (2d Cir. 1992), the district court found that neither party was entitled to attorneys' fees. Id. at 48-49. Plaintiff appealed, and one month later, defendants successfully moved to reopen the judgment under Fed.R.Civ.P. 60(b) to seek an award of attorneys' fees. Id. at 49. Plaintiff appealed that order. The Second Circuit held that the district court was precluded from granting a Rule 60(b) motion absent leave from the appellate court. The court explained: "We note that this is not a case where the district judge reserved decision on attorneys' fees but entered judgment on the merits." Thus Toliver supports jurisdiction on the facts of the instant motion, where judgment was explicitly reserved on the issue of fees associated with the original fee application (and related litigation) prior to the notice of appeal.

PAJ also cites Satcom Int'l Group, PLC v. Orbcomm Int'l Partners, L.P., 55 F. Supp.2d 231 (S.D.N.Y.), aff'd, 205 F.3d 1324 (2d Cir. 1999). However, the court explained in that case that "where the final judgment entered by the district court does not reach the question of attorneys' fees, the district court may proceed to award fees during the pendency of the appeal." Id. at 234. Here the December 2000 Order did not address, much less resolve, the amount of fees to which Yurman is entitled in connection with preparing and litigating the fee application.

PAJ contends that since the appeal concerns, inter alia, entitlement to attorneys' fees, any issue related to fees is not properly before the district court since such an award is dependent upon the appellate court's ruling on appeal. However, any award of attorneys' fees is contingent upon success of the underlying action and that argument was rejected by the court in Peterson. Moreover, concerns of efficiency are not implicated because, just as with the initial fee award, the supplemental award may be modified, if need be, consistent with an appellate decision. The alternative is to wait for a decision by the appellate court, then confront the issue of supplemental fees. It is exactly the same concern raised by the filing of an application for attorneys' fees while the underlying case is on appeal. As previously noted, that position has been rejected.

Yurman Has Not Waived its Opportunity to Request Fees Associated With its Initial Application

PAJ also contends that Yurman has waived any opportunity to assert the additional fees at issue in the instant motion because it failed to do so within the 14-day time window allowed by Rule 54, Fed.R.Civ.P. However, permission was granted by the Court to Yurman, allowing a supplemental application for fees associated with the preparation and defense of its initial fee application. This Court has the discretion to extend the time to seek fees, whether supplemental or otherwise. See Fed.R.Civ.P. 54 (d)(2)(B).

The Fees and Costs Awarded are $24,008.97

Yurman seeks fees and costs in the amount of $120.044.84. Consistent with the December 2000 Order and in recognition of the fact that Yurman's conduct in the initial fee application led, at least in some part, to its litigation expenses, Yurman is awarded 20% of the fees and costs billed, as reflected by the submitted time sheets. This result is largely justified by the Court's December 2000 Order which granted Yurman roughly 20% of its fees and costs in its initial application. In copyright infringement cases, courts evaluate amount of work and skill involved and result achieved to determine attorney fees. N.A.S. Import, Corp. v. Chenson Enters., Inc., 968 F.2d 250, 254 (2d Cir. 1992); Oboler v. Goldin, 714 F.2d 211 (2d Cir. 1983); Agee v. Paramount Communications, Inc., 869 F. Supp. 209 (S.D.N.Y. 1994). In discussing the setting of fees in civil rights litigation the court noted in INS v. Jean:

Because Hensley v. Eckerhart, 461 U.S. 424, 437 (1983), requires the district court to consider the relationship between the amount of the fee awarded and the results obtained, fees for fee litigation should be excluded to the extent that the applicant ultimately fails to prevail in such litigation. For example, if the Government's challenge to a requested rate for paralegal time resulted in the court's recalculating and reducing the award for paralegal time from the requested amount, then the applicant should not receive fees for the time spent defending the higher rate.

Such is the case here. Yurman succeeded on its fee application to the extent of roughly 20% of fees and costs actually billed. Therefore, Yurman is entitled to 20% of the fees and costs associated with the fee application. That total, $24,008.97, is comprised of $21,779.81 in fees and $2,229.16 in costs.

It is so ordered.