Jackson et al v. Odenat, No. 1:2009cv05583 - Document 159 (S.D.N.Y. 2014)
Court Description: OPINION AND ORDER re: 152 MOTION for Reconsideration re; 150 Memorandum & Opinion, Set Deadlines/Hearings filed by Lee Q. Odenat. For the foregoing reasons, Defendants' motion for reconsideration is denied. The parties are directed to schedule a settlement conference with Magistrate Judge Gorenstein. SO ORDERED. (Signed by Judge John F. Keenan on 6/12/2014) (ama)
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USDC SDNY DOCUMENT ELECTRONICALLY FILED DOC #: _________________ DATE FILED: June 12, 2014 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEWCOURT UNITED STATES DISTRICT YORK -----------------------------------X SOUTHERN DISTRICT OF NEW YORK CURTIS JAMES JACKSON, III, p/k/a : -----------------------------------------------------------x 50 In re FANNIE MAE 2008 SECURITIES CENT, TOMORROW TODAY :: 08 Civ. 7831 (PAC) ENTERTAINMENT, INC., and G-UNIT :: LITIGATION 09 MD 2013 (PAC) RECORDS, INC., :: :: OPINION & ORDER Plaintiffs, : -----------------------------------------------------------x : No. 09 Civ. 5583 (JFK) -against: : OPINION & ORDER LEEHONORABLE PAUL A. CROTTY, United States District Judge: Q. ODENAT, a/k/a Q, d/b/a : WWW.WORLDSTARHIPHOP.COM, WORLDSTAR : HIP HOP, INC., WORLDSTAR, LLC, : WSHH337, LLC, JOHN DOE LLC(S)/ : BACKGROUND1 CORPORATION(S), : : The early years of this decade saw a boom in home financing which was fueled, among Defendants. : other things, by low interest rates and lax credit : conditions. New lending instruments, such as ---------------------------------- : LEEsubprime mortgages (high credit risk loans) and : Q. ODENAT, a/k/a Q, d/b/a Alt-A mortgages (low-documentation loans) WWW.WORLDSTARHIPHOP.COM, : : kept the boom going. Borrowers played a role too; they took on unmanageable risks on the Third-Party Plaintiff, : : assumption that the market would continue to rise and that refinancing options would always be -against: : available in the future. Lending discipline was lacking in the system. Mortgage originators did YVES MONDESIR, : : not hold these high-risk mortgage loans. Rather than carry the rising risk on their books, the Third-Party Defendant. : -----------------------------------X originators sold their loans into the secondary mortgage market, often as securitized packages JOHN F. KEENAN, United States District Judge: known as mortgage-backed securities ( MBSs ). MBS markets grew almost exponentially. On March 24, 2014, the Court denied Defendants motion for But then the housing bubble burst. In 2006, the demand for housing dropped abruptly summary judgment, granted in part and denied in part Plaintiffs and home prices began to fall. In light of the changing housing market, banks modified their motion for summary judgment, and granted in part and denied in lending practices and became unwilling to refinance home mortgages without refinancing. part Third-Party Defendant s motion for summary judgment. Defendants Lee Odenat; Worldstar Hip Hop, Inc.; Worldstar, LLC; 1 Unless otherwise indicated, all references cited as (ΒΆ _) or to the Complaint are to the Amended Complaint, dated June 22, 2009. For purposes of this Motion, all allegations in the Amended Complaint are taken as true. and WSHH337, LLC now move for partial reconsideration of that 1 Opinion & Order pursuant to Local Civil Rule 6.3. For the reasons that follow, their motion is denied. I. Background The Court assumes familiarity with the facts as set forth in the March 24, 2014 Opinion & Order. See Jackson v. Odenat, --- F. Supp. 2d ----, 2014 WL 1202745, at *1 3 (S.D.N.Y. 2014). As relevant here, the Court found Defendants liable for copyright infringement for posting on their website copies of certain copyrighted photographs registered as part of the pictorial material accompanying two of Plaintiffs albums. In comparing the copyrighted photographs with the images on Defendants website, the Court noted that the only discernible difference aside from cropping was that one of the pictures had been flipped so that it faced right instead of left. Id. at *5. The Court also denied Defendants request for leave to amend their answer to interpose a statute of limitations defense as to Plaintiffs right of publicity claim, because Defendants had failed to demonstrate diligence. See id. at *6 7. II. Discussion A. Legal Standard A motion for reconsideration should generally be denied unless the moving party can point to controlling decisions or data that the court overlooked matters, in other words, that might reasonably be expected to alter the conclusion reached by 2 the court. Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995). This standard is strict to ensure the finality of decisions and to prevent the practice of a losing party examining a decision and then plugging the gaps of a lost motion with additional matters. Grand Crossing, L.P. v. U.S. Underwriters Ins. Co., No. 03 Civ. 5429, 2008 WL 4525400, at *3 (S.D.N.Y. Oct. 6, 2008) (internal quotation marks omitted). A motion for reconsideration is not a substitute for appeal nor an opportunity to advance new theories not previously argued. See Walsh v. WOR Radio, 537 F. Supp. 2d 553, 555 (S.D.N.Y. 2008), aff d, 326 F. App x 589 (2d Cir. 2009). B. Analysis Defendants argue that the Court made clear errors of law in finding them liable for copyright infringement and in denying their request to amend their answer to interpose a statute of limitations defense. Neither argument warrants reconsideration of the Court s March 24, 2014 Opinion & Order. As to copyright liability, Defendants contend that the Court made two clear errors regarding the issue of substantial similarity. First, according to Defendants, the Court erred by noting that Plaintiffs only need to show a substantial similarity when there is no evidence of actual direct copying. Jackson, 2014 WL 1202745, at *5. Second, Defendants claim that the Court went on to apply the wrong standard for substantial 3 similarity. Defendants maintain that the Court reached erroneous conclusions because it overlooked binding Second Circuit authority, principally Tufenkian Import/Export Ventures, Inc. v. Einstein Moomjy, Inc., 338 F.3d 127 (2d Cir. 2003). The Court did not overlook controlling authority, however, and it applied the correct standard. Even if a substantial similarity analysis is still required when actual direct copying is already established, that would not affect Defendants liability because the Court went on to engage in this analysis. As Defendants acknowledge, the Court compared the images on the website to the copyrighted photographs and determined that the images on the masthead are substantially similar because they are exact copies. Jackson, 2014 WL 1202745, at *5. In reaching this conclusion, the Court found that the copyrighted photographs exceed the rather low bar for copyright protection of photographs and that the copying was more than de minimis because it included the subjects of the copyrightable photographs. Id.; see also Tufenkian, 338 F.3d at 131 (defining substantial similarity as when the copying amounts to an improper or unlawful appropriation, i.e., (i) that it was protected expression in the earlier work that was copied and (ii) that the amount that was copied is more than de minimis (internal quotation marks omitted)); Elsmere Music, Inc. v. Nat l Broad. Co., 482 F. Supp. 741, 744 (S.D.N.Y.) (finding more 4 than a de minimis taking where defendant used a significant (albeit less than extensive) portion representing the heart of the work), aff d, 623 F.2d 252 (2d Cir. 1980). Having considered the controlling authority cited by Defendants and finding that it would not lead to a different result, the Court concludes that reconsideration of the copyright issue would be improper. To support their substantial similarity argument, Defendants take the Court s finding that one of the images was flipped as an invitation to now argue that the image may have been from a different album that was not registered with the copyright office. The Court notes that Defendants new argument is belied by their concession that the image was actually copied from the photograph registered with one of Plaintiffs copyrighted albums. (Def. Summ. J. Opp. Mem. 9; Def. Summ. J. Reply Mem. 3.) Although Defendants claim that they should be able to advance this theory because Plaintiffs did not note the difference when they moved for summary judgment, the image s change in orientation is a factor that could only inure to Defendants benefit. That the Court considered the change sua sponte does not mean that Defendants are entitled to address it more fully. Since Defendants did not raise this argument when moving for summary judgment, the Court does not consider it now. See Nieves v. N.Y.C. Police Dep t, 716 F. Supp. 2d 299, 303 5 (S.D.N.Y. 2010) ( A motion for reconsideration is not an opportunity for making new arguments that could have been previously advanced . . . . (internal quotation marks omitted)). Defendants also contend that the Court erred in denying their request (made in a footnote in their summary judgment reply brief) to amend the complaint by basing its ruling solely on Defendants diligence instead of also considering whether Plaintiffs would be prejudiced by such an amendment. To support this argument, Defendants cite the Second Circuit standard for amendment of pleadings under Rule 15(a) of the Federal Rules of Civil Procedure. However, the lenient Rule 15(a) standard must be balanced against the Rule 16(b) good cause standard when a scheduling order sets a deadline for amending pleadings. See Grochowski v. Phx. Constr., 318 F.3d 80, 86 (2d Cir. 2003). Indeed, this Court explicitly relied on Rule 16(b)(4): Because we are well past the December 15, 2009 deadline to amend pleadings, Defendants must show good cause. Jackson, 2014 WL 1202745, at *6 (citing Fed. R. Civ. P. 16(b)(4)); see also Jackson v. Odenat, No. 09 Civ. 5583, 2012 WL 505551, at *2 3 (S.D.N.Y. Feb. 14, 2012) (applying the Rule 16(b) good cause standard). The Court concluded that Defendants did not demonstrate diligence because their mistake in failing to plead a statute of limitations defense as to the right of publicity 6 claim did not justify their more than three-year delay in requesting leave to amend. See Jackson, 2014 WL 1202745, at *7. Reconsideration would be inappropriate because Defendants have not pointed to controlling authority that would change this conclusion. III. Conclusion For the foregoing reasons, Defendants' motion for reconsideration is denied. The parties are directed to schedule a settlement conference with Magistrate Judge Gorenstein. SO ORDERED. Dated: New York, New York June I 2014 'tr United States District Judge - 7 -
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