139 F.3d 67 (2nd Cir. 1998), 96-9593, Adsani v. Miller

Docket Nº:96-9593.
Citation:139 F.3d 67
Party Name:45 U.S.P.Q.2d 1801 Friederike Monika ADSANI, Plaintiff-Appellant, v. Peter MILLER; PMA Literary and Film Management, Inc.; Jean P. Sasson; William Morrow & Company, Inc.; Avon Books; The Hearst Corporation; Bantam Doubleday Dell Publishing Group, Inc., Defendants-Appellees.
Case Date:February 23, 1998
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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139 F.3d 67 (2nd Cir. 1998)

45 U.S.P.Q.2d 1801

Friederike Monika ADSANI, Plaintiff-Appellant,

v.

Peter MILLER; PMA Literary and Film Management, Inc.; Jean

P. Sasson; William Morrow & Company, Inc.; Avon Books;

The Hearst Corporation; Bantam Doubleday Dell Publishing

Group, Inc., Defendants-Appellees.

No. 96-9593.

United States Court of Appeals, Second Circuit

February 23, 1998

        Argued June 10, 1997.

Page 68

        Richard G. Menaker, New York City (Cheryl L. Davis, Menaker & Herrmann LLP, New York City, Bruce K. Lagerman, Lagerman & Associates, P.C., Reston, VA, of counsel), for Plaintiff-Appellant.

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        Richard Dannay, New York City (David O. Carson, Schwab Goldberg Price & Dannay, New York City, of counsel), for Defendants-Appellees Jean P. Sasson, William Morrow & Company, Inc., Avon Books, The Hearst Corporation and Bantam Doubleday Dell Publishing Group, Inc.

        Carl E. Person, New York City (letter brief), for Defendants-Appellees Peter Miller and PMA Literary and Film Management, Inc.

        OAKES and PARKER, Circuit Judges, and NICKERSON, District Judge. [*]

        PARKER, Circuit Judge:

        Friederike Monika Adsani, a resident of the United Kingdom with no assets in the United States, appeals a post-judgment order of the District Court for the Southern District of New York (Denise Cote, Judge ) dated November 19, 1996, directing her to post a bond of $35,000 to cover the costs and attorney's fees upon appeal pursuant to Rule 7 of the Federal Rules of Appellate Procedure. The bond order arose from her appeal of a judgment entered September 25, 1996 granting summary judgment and dismissing the complaint as to defendants Peter Miller and PMA Literary and Film Management, Inc. ("PMA") and an order entered April 23, 1996 granting summary judgment and dismissing the complaint as to the remaining five defendants, Jean P. Sasson, William Morrow & Company, Inc. ("Morrow"), Avon Books ("Avon"), The Hearst Corporation ("Hearst"), and Bantam Doubleday Dell Publishing Group, Inc. ("Bantam"), the merits of which will be addressed in a separate appeal seriatim, by previous order of this Court entered January 17, 1997, granting Adsani's motion for consolidation.

       I. BACKGROUND

        Adsani is a resident of the United Kingdom with no assets in the United States. She is the author of, and holds the copyright in, a manuscript version of her unpublished autobiography entitled Cinderella in Arabia or Cinderella in Kuwait ("Cinderella "), a memoir of time she spent in the Middle East. The manuscript recounts the oppressiveness of her Arab husband and the brutal treatment of women in traditional Middle Eastern culture.

        Adsani alleges that defendant Miller (Adsani's literary agent as well as literary agent to defendant Jean P. Sasson) had access to her manuscript and conspired with Sasson and the defendant publishers to publish a comprehensive, non-literal copy of her work under Sasson's name entitled Princess: A True Story of Life Behind the Veil in Saudi Arabia ("Princess" ), as well as a sequel entitled Princess: Sultana's Daughters (both of which became best sellers). Adsani theorizes that the defendants favored Sasson's work because Sasson was more famous than she. Adsani supported these allegations with (1) an affidavit of testimony of an industry professional; (2) a time-frame in which Sasson could have plagiarized her work; and (3) excerpts from her expert witness's report, which detail numerous purported similarities between Cinderella and Princess.

        On December 21, 1994, Adsani brought a copyright infringement claim, along with related state law claims of misappropriation of ideas and unjust enrichment; she also claimed breach of fiduciary duty against defendants Miller and PMA.

        Early in the litigation, the defendants requested a bond to cover attorney's fees to which they might be entitled under 17 U.S.C. § 505. See Fogerty v. Fantasy, Inc., 510 U.S. 517, 114 S.Ct. 1023, 127 L.Ed.2d 455 (1994). The district court granted this request, ordering Adsani to post a bond of $10,000. Adsani complied. During discovery, the court later amended this order to make the bond $50,000. Again, Adsani complied. Then, on April 19, 1996, the court granted summary judgment to the defendants on the copyright infringement and unjust enrichment claims. The state claim of misappropriation of ideas as against Sasson was also dismissed. The state claims of misappropriation

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and breach of fiduciary duty against Miller and PMA were not dismissed. Pursuant to Fed.R.Civ.P. 54(b), Judge Cote entered partial judgment in favor of defendants Sasson, Morrow, Avon, Hearst and Bantam. This left only Miller and his agency, PMA, in the suit.

        Subsequently, Miller and PMA moved for summary judgment, Adsani moved for reconsideration of the dismissal of misappropriation claims against Sasson, and all of the defendants moved for attorney's fees pursuant to 17 U.S.C. § 505. By opinion and order entered September 23, 1996 (and corrected opinion and order entered September 24, 1996), the district court granted summary judgment in favor of Miller and PMA, rejected Adsani's motion to reconsider, and granted attorney's fees to the defendants, in the amount of $11,448.25 for Miller and PMA, and $96,545.14 for defendants Sasson, Morrow, Avon, Hearst, and Bantam (a total of $107,993.39). 1

        The district court granted defendants' attorney's fees on the ground that Adsani's claim had been "objectively unreasonable." The defendants placed a demand for payment with Adsani's bonding company, and were paid $50,000 by the company a few months later. Adsani did not oppose enforcement of judgment for the remaining $57,993.39 in attorney's fees nor did she make payment on this remaining sum. She also made no attempt to stay enforcement of judgment through posting a supersedeas bond.

        Adsani filed a timely Notice of Appeal, and the defendants moved the district court to require Adsani to post a bond pursuant to Fed.R.App.P. 7. 2 The district court granted this motion, requiring Adsani to post a bond of $35,000 "to cover the costs of appeal and a possible award of attorney's fees associated with that appeal." The district court found that such a bond was necessary because Adsani had no assets in the United States and she gave no supersedeas bond for the district court's approval to stay enforcement of the judgment, pursuant to Rule 62(d), Fed.R.Civ.P. Judge Cote, however, stayed the imposition of the post-judgment bond order for two weeks to give Adsani the opportunity to appeal her ruling. Adsani filed a notice of appeal of the Rule 7 order as well as the judgment dismissing on the merits.

        Adsani moved in the district court for an extension of the stay of enforcement, but was denied. On December 4, 1996, Adsani moved this Court for an order vacating the Rule 7 bond or, in the alternative, consolidating the appeal from the Rule 7 order with the merits appeal. The defendants opposed the consolidation. On January 14, 1997, this Court heard oral argument on the motion and, on January 17, 1997, issued an order granting

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defendant's request that the appeals be heard seriatim, with the Rule 7 appeal first. This is the appeal of the Rule 7 order.

       II. DISCUSSION

  1. Rule 39's Relationship with Rule 7

            Ordinarily, we would review the district court's post-judgment order pursuant to Rule 7 for abuse of discretion. See Federal Prescription Service, Inc. v. American Pharmaceutical Ass'n, 636 F.2d 755, 757 n. 2 (D.C.Cir.1980) (Rule 7 "leaves the requirement of an appeal bond to the district court's discretion...."). Since, however, this appeal challenges the extent and type of costs allowable under Rule 7, we review de novo to settle a question of law. S. Childress & M. Davis, Federal Standards of Review § 2.13 at 2-92 (2d ed. 1986).

            The federal rules provide that a district court "may require an appellant to file a bond or provide other security in such form and amount as it finds necessary to ensure payment of costs on appeal in a civil case." Fed.R.App.P. 7. Adsani argues that the definition of "costs" in Rule 7 should be supplied by Rule 39, Fed.R.App.P., which lists certain costs but makes no mention of attorney's fees. Thus, argues Adsani, the district court erred when it required her to post a bond for an amount that included fees.

            The defendants-appellees, on the other hand, assert principally that Rule 39's definition of costs is irrelevant, and should not be imported into Rule 7. They argue, first, that Rule 7 allows the district court to require an appellant to post a bond to cover "costs." Second, Rule 7 does not define "costs." Third, the Copyright Act provides for the award of attorney's fees (including fees associated with appeals) to a prevailing party "as part of the costs." 17 U.S.C. § 505; see, e.g., Twin Peaks Prods., Inc. v. Publications Int'l, Ltd., 996 F.2d 1366, 1383 (2d Cir.1993) (holding that in a suit brought under the Copyright Act "an award of attorney's fees may be made for services rendered on appeal as well as at the trial level.") (quoting 3 M.B. Nimmer & D. Nimmer, Nimmer on Copyright § 14.10[E], at 14-129). Therefore, defendants-appellees argue, an appellant in copyright litigation may be required to post a bond that includes the appellee's estimated attorney's fees on appeal. 3

            Adsani relies on Roadway Express, Inc. v. Piper, 447 U.S. 752, 100 S.Ct. 2455, 65 L.Ed.2d 488 (1980). There, the plaintiffs brought a civil rights class action, but failed to respond to court deadlines and were generally slow and uncooperative in their prosecution of the case. The district court sanctioned the plaintiffs' attorneys, requiring them to pay defendant Roadway's costs and attorney's fees for the entire lawsuit. Id. at 756, 100 S.Ct. at 2458-59...

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