Sands v. Bauer Media Group USA, LLC, No. 1:2017cv09215 - Document 67 (S.D.N.Y. 2019)
Court Description: MEMORANDUM OPINION: This action shall be dismissed with prejudice unless Sands, on or before October 29, 2019, posts of a bond or other sufficient security in the amount of $50,000 for costs and attorney's fees in this action. SO ORDERED. (Signed by Judge Lewis A. Kaplan on 10/22/2019) (mml) Transmission to Finance Unit (Cashiers) for processing.
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Sands v. Bauer Media Group USA, LLC Doc. 67 NITED STATES DISTICT COURT SOUTHERN DISTRICT OF NEW YORK ------------------------------------------x STEVE SANDS, Plaintif, 17-cv-9215 (LAK) -againstBAUER MEDIA GROUP USA, LLC, Deendant. - - - -- - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - - - - - -x MEMOANDUM OPINION Appearances: ichard Liebowitz Yekaterina Tsyvkin LEBOWITZ LAW FIRM PLLC Attorneysfor Plaintf Terence P. Keegan David S. Korzenik MILLER KORZEK SOERS RAAN LLP Attoneys for Defendant LEWIS A. APLAN, District Judge. On September 18, 2019, I issued a memorandum opinion that, among other things, granted deendant Bauer Media Group USA, LLC's motion for sanctions [DI-38] against plaintif Steve Sands and his counsel, Richard Liebowitz, "to the extent that ... plaintif shall show cause, on or beore October 2, 2019, why the Court should not condition plaintiffs ability to proceed with Dockets.Justia.com 2 this action on the posting of a bond or other suficient security in the amount of $50,000 or costs and attoney's fees in this action." 1 The parties have brieed the issue, and it is now ripe or decision. Discussion Local Civil Rule 54.2 provides: "The Court, on motion or on its own initiative, may order any party to ile an original bond or costs or additional security or costs in such an amount and so conditioned as it may designate. For ailure to comply with the order the Court may make such orders in regard to noncompliance as are just, and among others the ollowing: an order striking out pleadings or staying urther proceedings until the bond is iled or dismissing the action or rendering a judgment by deault against the non-complying pay." The "costs" or which courts may require a security include the reasonable attoneys' ees available to a prevailing deendant under Section 505 of the Copyright Act.2 "Factors generally considered [in determining whether to require security for costs] include: [1] the inancial condition and ability to pay of the pary at issue; [2] whether that party is a non-resident or oreign coporation; [3] the merits of the underlying claims; [4] the extent and scope of discovery; [5] the legal costs expected to be incurred; and [6] compliance with past court orders."3 In copyright cases, courts rely Memorandum Opinion 15 [DI-56]. 2 See Cruz v. Am. Broa. Companies, Inc., No. 17-CV-8794 (LK), 2017 WL 5665657, at * 1 (S.D.N.Y. Nov. 17, 2017) (citing Selletti v. Carey, 173 F.R.D. 96, I 00 (S.D.N.Y. 1997) (Chin, .), af'd, 173 F.3d 104 (2d Cir. 1999)); see aso 17 U.S.C. ยง 505. 3 Id. (quoting Selletti, 173 F.R.D. at 100-01); see also, e.g., Mango v. Democracy ow! Prods., Inc., No. 18CV10588 (DLC), 2019 WL 3325842, at *2 (S.D.N.Y. July 24, 2019) (same); Rice v. Musee Lingerie, LLC, No. 18-CV-9130 (AJN), 2019 WL 2865210, at *I (S.D.N.Y. July 3, 2019) (same). 3 frequently on the fith and sixth actors, at times to the exclusion of the other our.4 "Security oten has been required where the merits of a plaintifs case are questionable and there is doubt as to the [plaintifs] ability to satisy any costs judgment that ultimately may be imposed."5 Factor one points in neither direction, as the parties have not presented information on Sands's inancial condition or ability to pay. Factor two points in favor of Sands because he is a U.S. citizen. Although I need not look to the merits of Sands's clam, as actor three invites me to do, I note hat his discovery violation has obscured important acts and impeded thereby my ability to assess the merits. Moreover, at this time it appears that Bauer has a reasonable likelihood of success on his fair use deense. Factor four points against Sands, as his discovery violation has created the need or additional discovery and, thereore, additional costs for Bauer. Defense counsel estimates, and I have no reason to doubt, that the additional attoneys' ees to be incmTed as a result of the reopened discove1y may be as high as $40,000 to $60,000.6 Factors five nd six are where the rubber meets the road. As noted above, Sands may be required under Section 505 of the Copyright Act to pay Bauer's reasonable attoneys' ees. Bauer asserts that it already has incurred "well in excess" of $50,000 in attoneys' ees litigating this case. 7 Rice, No. 18-CV-9130 (AN), 2019 WL 2865210, at* 1 (citing, e.g., Leibowitz v. Galore Media, Inc., No. 18-cv-2626 (RA) (BP), 2018 L 4519208, at *2 (S.D.N.Y. Sept. 20, 2018)). Cruz, No. 17-CV-8794 (LAK.), 2017 L 5665657, at *1 (citingSelletti, 173 F.R.D. at 10102). 6 Declaration of David S. Korzenik in Suppot of Bauer Media Group USA, LLC's Award of Attoney's Fees & in Suppot of Order Requiring Securiy or Costs 3 [Dl-65]. 7 Id 4 Its counsel has submitted invoices pertaining to its work litigating the motion or sanctions that total roughly $40,000. 8 I already have ordered Mr. Liebowitz to reimburse Bauer or ees incun-ed litigating that motion,' and I thereore do not consider those ees in estimating the costs and expenses that Snds may be required to pay under Section 505. Nonetheless, I ind that the other work perormed by Bauer's counsel has generated significant ees and that those ees will continue accruing as the litigation moves orward. The fith factor weighs strongly in avor of ordering Sands to post a bond. 10 If Sands ultimately is ordered to pay Bauer's reasonable attoneys' ees, I have reason to doubt hat he will comply with ny such order in light of his failure to comply with the March 9, 2018 order to produce disclosures required by Rule 26(a). As I found in my prior opinion, Sands misleadingly identiied only himself as a person likely to possess infomation concening the licensing history of the allegedly inringed photographs at issue in this case. 11 His ailure to identiy Getty Images and Matrix Pictures as entities with relevant information - without any satisactory 8 d at 2. 9 See Memorandum Opinion 15 [D1-56]. 10 Bauer did not provide invoices documenting its counsel's other work litigating this matter. Such invoices would have been more helpul to understanding the costs it has incurred than the representation of its counsel that those costs - apparently inclusive of the roughly $40,000 spent litigating the sanctions motion - are "well in excess" of $50,000. Nonetheless, I ind that the amount of fees Bauer has incurred is signiicant in light of the billing rates noted in its papers, see id at 3, along with my assessment of the rough amount of hours an atoney would reasonably expend on this work. I need not be aware of the precise amount Bauer's counsel has invoiced to conclude that, when viewed in conjunction with the other actors I consider in this opinion, it substantiates the relief ordered herein. 11 Memorandum Opinion 7-9 [D1-55]. 5 excuse or the omission -prjudiced Bauer and caused me to reopen discovery. 12 This violation was neither inadvertent nor insubstantial. 13 Sands's opposition to the order to show cause does little to assuage these concerns. His October 2, 2019 memorandum in response to that order is copied almost verbatim rom his November 30, 2018 memorandum in opposition to Bauer's motion for a bond as security. 14 Thus, some ofhis central contentions, such as a lenthy section arguing that "Snds has never violated any Court orders," 15 are incorrect and raise serious questions about his (and his consel's) interest in litigating this case - a actor that weighs urther in avor of conditioning Sands' s ability to proceed on his posting of a bond or other suficient security. Sands provides otherwise no persuasive 12 Id. at 11-15. 13 As I found, Sands's violation let Bauer, post the close of the discovery period[,] acing a motion or pa1tial summary judgment motion as to liability, a previously unmade claim that these photos had been licensed to Getty and Matrix, and still no documentary evidence of any such licenses, let alone any infomation at all about the economic terms of any such licenses. Now it has before it a need or reopened discovery of plaintif, Getty, and Matrix -the last of which is based in the United Kingdom and may not be subject to process here - and a waste of some level of effort between the date of the initial conference and the present. I. at 14. 14 Compare Memorandum of Law in Response to Court's Order to Show Cause as to Why Plaintif Should Not Be Required to Post a Bond as Security or Costs and Fees Under Local Rule 54.2 [DI-58], with Memorandum of Law in Opposition to Defendant's Motion or a Bond as Security or Costs and Fees Under Local Rule 54.2 and for Discovery Sanctions [DI-43]. 15 Memorandum of Law in Response to Court's Order to Show Cause as to Why Plaintif Should Not Be Required to Post a Bond as Securiy or Costs and Fees Under Local Rule 54.2 at23 [Dl-58]; i. at21-26. 6 argument rebutting my indings that Bauer has incun-ed and will continue to incur signiicant costs that may be recoverable under Section 505.16 In sum, there is a reasonable possibility that Sands will be required to reimburse Bauer's costs, and Sands's conduct in this litigation - to say nothing of his counsel's conduct 17 reveals a reasonable possibility that Sands will default on that obligation. Under these circumstances, the Rule 54.2 order contemplated in my previous opiion is wa-anted. Conclusion This action shall be dismissed with prejudice unless Sands, on or beore October 29, 2019, posts of a bond or other suficient security in the amount of $50,000 or costs and attoney's fees in this action. SO ORDERED. October 22, 2019 Dated: 16 I decline Bauer's request to hold that Sands defaulted on the order to show cause by resubmitting old materials. 17 Other couts in this district have cited Mr. Liebowitz's repeated ailure to comply with cout orders and his habit of filing misleading documents as weighing in favor of imposing a bond on his clients. See, e.g., Rice, No. 18-CV-9130 (AJN), 2019 L 2865210, at *1. I reach my holding without considering these actors, as I find that Sands' s conduct in this case merits the relief ordered herein. Nonetheless, to the extent Mr. Liebowitz's conduct in other cases is relevant to his client's likelihood of deaulting on a possible obligation to pay atoneys' ees, that conduct would weigh heavily in avor of requiring Sands to post a bond.
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