IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

____________________________________

:

HEALTHCARE ADVOCATES, INC., : CIVIL ACTION

:

Plaintiff, :

:

v. : No. 05-3524

:

HARDING, EARLEY, FOLLMER & :

FRAILEY, et. al., :

:

Defendants. :

____________________________________:

MEMORANDUM

ROBERT F. KELLY, Sr. J. SEPTEMBER 10, 2007

Presently before this Court is the Motion for Attorneys’ Fees and Costs filed by

Defendants Harding, Earley, Follmer & Frailey, John F.A. Earley, III, Frank Bonini, Charles L.

Riddle, and Kimber Titus (collectively the “Harding firm”). For the following reasons, this

Motion is denied as to the attorneys’ fees, but granted as to costs.

On July 20, 2007, this Court granted summary judgment in favor of the Harding firm on

all of Plaintiff Healthcare Advocates, Inc.’s claims. Healthcare Advocates, Inc. v. Harding,

Earley, Follmer, & Frailey, No. 05-3524, 2007 WL 2085358 (E.D. Pa. July 20, 2007). These

claims were for copyright infringement, violation of the Digital Millennium Copyright Act,

violation of the Computer Fraud and Abuse Act, conversion, and trespass to chattels. The

Harding firm, as the prevailing party, is now seeking attorneys’ fees and costs pursuant to Section

505 of the Copyright Act. See 17 U.S.C. § 505. 

The awarding of attorneys’ fees is within the discretion of this Court. Lieb v. Topstone

Indus., Inc., 788 F.2d 151, 155-56 (3d Cir. 1986). Bad faith by the losing party is not required to

Case 2:05-cv-03524-RK Document 86 Filed 09/10/07 Page 1 of 3
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award fees, however, they are not a matter of course for the prevailing party either. Id. at 156. 

Instead, this Court must use an evenhanded approach. Id. Factors to consider in deciding to

award attorneys’ fees are: “frivolousness, motivation, objective unreasonableness (both in the

factual and in the legal components of the case) and the need in particular circumstances to

advance considerations of compensation and deterrence.” Id. 

While Healthcare Advocates did not prevail on its copyright infringement claim, this

Court had to thoroughly analyze the underlying facts and legal issues before coming to a

decision. The lengthy July 20, 2007 Memorandum and Order granting the Harding firm’s

Motion for Summary Judgment and denying Healthcare Advocates’ Motion for Partial Summary

Judgment is evidence of the non-frivolous nature of this claim. See Healthcare Advocates, 2007

WL 2085358, at * 5-13. Therefore, this Court cannot deem Healthcare Advocates’ copyright

infringement claim frivolous or objectively unreasonable because Healthcare Advocates put forth

a reasonable legal argument. Accordingly, attorneys’ fees are not warranted.

The awarding of costs, however, is warranted. Under 17 U.S.C. § 505, the district court

in a copyright action “may allow the recovery of full costs by or against any party.” The term

“full costs” in this statute refers to those costs allowed pursuant to 28 U.S.C. § 1920. Schiffer

Pub., Ltd. v. Chronicle Books, LLC, No. 03-4962, 2005 WL 1244923, *15 (E.D. Pa. May 24,

2005). The Harding firm has requested costs for printing, transcripts, exemplification, and

copies totaling $ 9,348.60. This Court finds that these costs are recoverable and reasonable. 

Defendants are accordingly awarded $ 9,348.60.

An appropriate Order follows.

Case 2:05-cv-03524-RK Document 86 Filed 09/10/07 Page 2 of 3
 IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

____________________________________

:

HEALTHCARE ADVOCATES, INC., : CIVIL ACTION

:

Plaintiff, :

:

v. : No. 05-3524

:

HARDING, EARLEY, FOLLMER & :

FRAILEY, et. al., :

:

Defendants. :

____________________________________:

ORDER

AND NOW, this day of September 2007, upon consideration of Defendants’

Motion for Attorneys’ Fees and Costs, and the Response in Opposition thereto, it is hereby

ORDERED that Defendants’ Motion (Doc. No. 80) is DENIED as to attorneys’ fees and

GRANTED as to costs. Defendants are awarded $ 9,348.60 in costs.

BY THE COURT:

 /s/ Robert F. Kelly 

ROBERT F. KELLY

SENIOR JUDGE

Case 2:05-cv-03524-RK Document 86 Filed 09/10/07 Page 3 of 3