24-303 Paulo v. Agence France-Presse

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 27th day of October, two thousand twenty-five.

PRESENT: PIERRE N. LEVAL, RICHARD J. SULLIVAN, MARIA ARAÚJO KAHN, Circuit Judges. ______________________________________

LEONG FRANCISCO PAULO,

Plaintiff-Appellee,

v. No. 24-303

AGENCE FRANCE-PRESSE, GETTY IMAGES (U.S.), INC., GETTY IMAGES INC.,

Defendants-Appellants, John Doe 1–100, XYZ Corporation 1–100,

Defendants. _______________________________________

For Plaintiff-Appellee: Leong Francisco Paulo, pro se, Lisbon, Portuguese Republic.

For Defendants- Appellants: Nancy E. Wolff (Benjamin S. Halperin on the brief), Cowan, Debaets, Abrahams & Sheppard LLP, New York, NY.

1 Appeal from an order of the United States District Court for the Southern

2 District of New York (Jennifer L. Rochon, Judge).

3 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

4 ADJUDGED, AND DECREED that the January 3, 2024 judgment of the district

5 court is AFFIRMED.

6 Agence France-Presse (“AFP”), Getty Images (U.S.), Inc., and Getty Images

7 Inc. appeal from an order denying their motion for attorneys’ fees and costs

8 following the dismissal of Plaintiff Leong Francisco Paulo’s copyright

9 infringement claims under the doctrine of forum non conveniens. See Paulo v.

10 Agence France-Presse, No. 21-cv-11209,

, at *1 (S.D.N.Y. Mar. 30,

11 2023). We assume the parties’ familiarity with the underlying facts, procedural

2 1 history, and issues on appeal, to which we refer only as necessary to explain our

2 decision to affirm.

3 We review the “legal question of prevailing party status de novo,” Scarangella

4 v. Grp. Health, Inc.,

(2d Cir. 2013), as we do “questions of law

5 regarding the legal standard for granting or denying attorney’s fees,” Lilly v. City

6 of New York,

(2d Cir. 2019). In all other respects, we review “the

7 district court’s denial of an application for attorney’s fees . . . for abuse of

8 discretion.” Scarangella,

.

9 Appellants argue that they are entitled to attorneys’ fees and costs under

10 two separate provisions: Section 505 of the Copyright Act, see Appellants Br. at

11 11 (quoting

), and Federal Rule of Civil Procedure 41(d), see

at 21

12 (quoting Fed. R. Civ. P. 41(d)). We consider each in turn.

13 I. Costs and Fees under

14 Appellants’ first argument – that they qualify as “prevailing parties” under

15

– is foreclosed by this Circuit’s caselaw. Indeed, we have long

16 held that “a defendant who successfully obtains a dismissal on forum non

17 conveniens grounds is not a ‘prevailing party’ entitled to costs” or attorneys’ fees

18 under section 505. Dattner v. Conagra Foods, Inc.,

(2d Cir. 2006)

3 1 (emphasis added). A defendant who succeeds in procuring a “dismissal on the

2 ground of forum non conveniens” is “not, after all, immunize[d] . . . from the risk of

3 further litigation on the merits.” Id.; see also

(“[B]ecause it remains to be seen

4 which party will, in fact, prevail on the merits, defendants have not yet achieved

5 a judicially sanctioned change in the legal relationship of the parties so as to be

6 considered ‘prevailing.’”).

7 In the face of this clear precedent, Appellants urge us to ignore Dattner in

8 light of what they argue is intervening authority from the Supreme Court. See

9 Appellants Br. at 18–21 (citing CRST Van Expedited, Inc. v. E.E.O.C.,

10 (2016)). But CRST says nothing about Dattner in particular or dismissals on the

11 basis of forum non conveniens in general. Instead, that case merely stands for the

12 proposition that a favorable ruling on the merits is not a prerequisite for a finding

13 that a defendant is a prevailing party. See CRST, 578 U.S. at 431 (“The defendant

14 may prevail even if the court’s final judgment rejects the plaintiff’s claim for a

15 nonmerits reason.” (emphasis added)). Indeed, three years after CRST, we

16 reiterated that under Dattner, “a defendant who ha[s] obtained a dismissal on

17 forum non conveniens grounds [is] not a prevailing party because the plaintiff could

18 pursue his claims against the defendant in another forum.” Manhattan Rev. LLC

4 1 v. Yun,

(2d Cir. 2019). In the years since, neither the Supreme

2 Court – nor our Court sitting en banc – has reversed our holding in Dattner or

3 asserted that it was incorrect. In fact, the day before the Reply Brief was filed in

4 this case, the Supreme Court acknowledged that it is an “open” question “whether

5 a defendant must obtain a preclusive judgment in order to prevail.” Lackey v.

6 Stinnie,

, 204 n.* (2025).

7 Put simply, we are bound by our holding in Dattner and thus reject

8 Appellant’s contention that Dattner “should be overturned as irreconcilable with”

9 current Supreme Court caselaw. Appellants Br. at 18.

10 II. Costs and Fees under Fed. R. Civ. P. 41(d)

11 Appellants also argue that Federal Rule of Civil Procedure 41(d) provides

12 an independent basis for them to recover attorneys’ fees and costs in this case.

13 Again, we disagree.

14 Rule 41(d) provides that “[i]f a plaintiff who previously dismissed an action

15 in any court files an action based on or including the same claim against the same

16 defendant, the court . . . may order the plaintiff to pay all or part of the costs of that

17 previous action.” Fed. R. Civ. P. 41(d) (emphasis added). The parties spill much

18 ink on whether Rule 41(d)’s use of the term “any court” extends to dismissals in

5 1 foreign tribunals. But while the parties are correct that this is an issue of first

2 impression in this (and, in fact, any) circuit, we need not resolve it now because

3 Rule 41(d) is merely permissive, not mandatory. In other words, even if Appellants

4 are correct that the term “any court” extends to Paulo’s voluntary dismissal of his

5 action in Portugal, Rule 41(d) only provides that a court “may order” the plaintiff

6 to pay costs, and the district court below made clear that it chose “not [to] exercise

7 its discretion to award costs to AFP under Rule 41(d)” “[f]or substantially the same

8 reasons” underlying its conclusion that it would not award attorneys’ fees even if

9 Appellants had been prevailing parties under section 505. Sp. App’x at 14–15.

10 The district court concluded as much because it “d[id] not find” that Paulo’s

11 “claims – which are still the subject of litigation in Portugal, or perhaps eventually

12 here – are frivolous, unreasonable, or based on any improper motive.” Id. at 9.

13 Indeed, the district court made clear that its forum non conveniens ruling was

14 conditional, leaving open the possibility that Paulo might renew an action in the

15 Southern District of New York “should the Portuguese court decline to hear his

16 claims.” Id. Based on these facts, the district court concluded that Appellants

17 had established neither the “objective (un)reasonableness of a losing party’s

6 1 litigation position” nor that the claims were “frivolous” or “based on any improper

2 motive.” Id. (internal quotation marks omitted).

3 We cannot say that the district court “base[d] its decision on a clearly

4 erroneous factual finding.” Lilly,

(internal quotation marks

5 omitted). In granting Appellants’ motion and sending the case back to Portugal,

6 the district court merely required the parties to resume the litigation they had

7 already started in that country. And if Appellants prevail in that action, they can

8 seek attorneys’ fees and costs from the Portuguese court. See Judiciaries

9 Worldwide, Portugal Attorneys’ Fees, FED. JUD. CTR.,

10 https://judiciariesworldwide.fjc.gov/attorneys-fees [https://perma.cc/BUM5-

11 2PFN] (last visited Oct. 20, 2025) (“In Portugal, the prevailing party can recover

12 costs, including attorney’s fees . . . .”). On the other hand, if – in light of the

13 district court’s conditional dismissal – the case were to return to the United States,

14 the door would remain open for Appellants to prevail here on the merits and then

15 move for costs and attorneys’ fees under section 505 of the Copyright Act. Given

16 these possible scenarios, the district court did not abuse its discretion in denying

17 Appellants’ motion for attorneys’ fees and costs.

18 * * *

7 1 We have considered Appellants’ remaining arguments and find them to be

2 without merit. Accordingly, we AFFIRM the judgment of the district court.

3 FOR THE COURT: 4 Catherine O’Hagan Wolfe, Clerk of Court

8