Andreas v. Volkswagen of America, Inc., 02-2309.

• Decision Date: 21 July 2003
• Docket Number: No. 02-2420.,No. 02-2309.,02-2309.,02-2420.
• Citation: 336 F.3d 789
• Parties: Brian ANDREAS, an individual, Appellant/Cross-Appellee, v. VOLKSWAGEN OF AMERICA, INC., doing business as Audi of America, Inc., a New Jersey Corporation, Appellee, McKinney & Silver, Inc., a Delaware Corporation, Cross-Appellant/Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

336 F.3d 789

Brian ANDREAS, an individual, Appellant/Cross-Appellee, v. VOLKSWAGEN OF AMERICA, INC., doing business as Audi of America, Inc., a New Jersey Corporation, Appellee, McKinney & Silver, Inc., a Delaware Corporation, Cross-Appellant/Appellee.

No. 02-2309.

No. 02-2420.

United States Court of Appeals, Eighth Circuit.

Submitted: March 13, 2003.

Filed: July 21, 2003.

COPYRIGHT MATERIAL OMITTED

S. Jerome Mandel, argued, Santa Monica, CA (Lilly Lewis of Santa Monica, CA, J. Michael Weston of Cedar Rapids, IA, on the brief), for appellant.

Counsel who presented argument on behalf of the appellee was Sara Edelman, argued, New York City, for Volkswagen

Howard R. Weingrad, argued, New York City, for McKinney & Silver (Edmund J. Sease, Jeffrey D. Harty, Des Moines, IA, on the brief), for appellees.

Before HANSEN,¹ Chief Judge, JOHN R. GIBSON and LOKEN, Circuit Judges.

HANSEN, Circuit Judge.

A jury awarded Brian Andreas a total of $965,000 in his copyright infringement action against Volkswagen of America, Inc., doing business as Audi of America, Inc. (hereinafter "Audi") and McKinney & Silver, Inc. (hereinafter "M & S"), Audi's advertising agency. The jury found that the defendants violated federal copyright law when M & S included a phrase from one of Andreas's copyrighted works in a television commercial that it created for the introduction of the Audi TT coupe. Andreas appeals the district court's grant of judgment as a matter of law to Audi on Andreas's jury award of $570,000 representing Audi's ill-gotten profits. M & S cross-appeals the district court's denial of its motion for remittitur on Andreas's award of $280,000 for M & S's profits. We reverse the district court's grant of Audi's motion for judgment as a matter of law and affirm the court's denial of M & S's motion for remittitur.

I.

Brian Andreas, an artist and author from Decorah, Iowa, created a drawing in 1994 entitled "Angels of Mercy," which he paired with the accompanying text he authored: "Most people don't know that there are angels whose only job is to make sure you don't get too comfortable & fall asleep & miss your life." The work was copyrighted and copies of it were included in numerous books. Prints of the work have been sold throughout the United States.

M & S created three television commercials to promote Audi's initial release of the Audi TT coupe into the United States market. One of the television commercials, referred to as the "Wake Up" commercial, depicted an Audi TT coupe in a garden surrounded by angelic looking, neoclassical statues. The commercial contained a voice-over, which says in its entirety: "I think I just had a wake-up call, and it was disguised as a car, and it was screaming at me not to get too comfortable and fall asleep and miss my life." The commercial aired from May through October 1999, when Audi pulled the commercial after the allegations of copyright infringement were brought to its attention.

Andreas brought a copyright infringement action against M & S and Audi. Prior to trial, the district court granted Audi's motion in limine, precluding Andreas from introducing evidence of Audi's gross revenues from sales of any automobile other than the TT coupe depicted in the commercial. The case proceeded to trial. Following Andreas's presentation of his case, Audi and M & S made a written Rule 50(a) motion for judgment as a matter of law, which they renewed after submission of all of the evidence. The district court reserved ruling on the renewed motion. The jury returned a verdict for Andreas, awarding him $115,000 in actual damages, $280,000 for M & S's profits from the infringement, and $570,000 for Audi's profits from the infringement. M & S and Audi are jointly and severally liable for the actual damages, and each is liable for its own profits award. Following the verdict, Audi and M & S filed a joint Rule 50(b) motion on Andreas's profits claims against each of them. The district court granted Audi's motion and vacated the jury's $570,000 award representing Audi's profits. The court denied M & S's motion.

In this appeal, none of the parties dispute the jury's finding of a copyright infringement or the $115,000 actual damages award. Andreas appeals the district court's grant of the motion for judgment as a matter of law to Audi, alleging that Audi's motion was untimely and therefore the district court lacked jurisdiction to rule on the motion. On the merits, Andreas argues that he met his burden of establishing a causal connection between the infringement and Audi's profits from the TT coupe. Andreas also argues that the district court erred in granting Audi's pretrial motion in limine and precluding him from introducing evidence of Audi's revenues from all of its automobile sales during the relevant time period. M & S cross-appeals, arguing that the district court erred in failing to remit the award of M & S profits.

II. Jurisdiction

As noted above, during trial Audi and M & S filed a motion for judgment as a matter of law (JAML) and supporting brief on November 30, 2001, following Andreas's presentation of evidence. The court denied the motion as to three issues and reserved judgment on the final issue. Audi orally renewed the motion before the case was submitted to the jury, and the court again reserved ruling. The jury returned its verdict on December 4, 2001, and the court entered judgment in accordance with the verdict on December 5, 2001. On December 19, 2001, the last available day for filing a Rule 50(b) motion, Audi filed a motion for judgment as a matter of law "pursuant to Rule 50" "on plaintiff's []claim for profits." (Appellant's App. at 277-78.) The motion noted that pursuant to the parties' conference with the judge, a supporting memorandum would be submitted following receipt of the trial transcript. The motion also sought a reduction in the award of M & S's profits or a new trial on the issue. The parties subsequently briefed the motion and the district court entered its Amended Judgment and Order on April 24, 2002. Andreas filed this appeal on May 15, 2002.

Andreas argues that the motion for JAML was defective because it failed to meet the requirements of Federal Rule of Civil Procedure 7, which states that motions "shall state with particularity the grounds therefor," Fed.R.Civ.P. 7(b)(1), and that the subsequently filed briefs were well beyond the ten-day time limit for filing JAML motions. See Fed.R.Civ.P. 50(b). Without a proper timely motion, the district court, according to Andreas, lacked jurisdiction to enter the amended judgment and order. See U.S. Leather, Inc. v. H & W P'ship, 60 F.3d 222, 225 (5th Cir.1995) (ten-day period to file posttrial motions is jurisdictional); Fed.R.Civ.P. 6(b) (district court may not enlarge time to file Rule 50(b) motion). If Andreas is correct, then we must dismiss this appeal because the Rule 50 motion was not an adequate motion and it did not toll the time in which Audi had to file its notice of appeal under Federal Rule of Appellate Procedure 4(a)(4)(A)(i), which provides four instances, including a Rule 50 motion, that will toll the time for filing a notice of appeal. See Riley v. North. Bell Tele. Co., 1 F.3d 725, 727 (8th Cir.1993) (dismissing for lack of appellate jurisdiction where notice of Rule 52(b) and Rule 59 motion was not sufficiently particular and therefore did not toll time for appeal). The district court rejected Andreas's argument, finding that the issue of profits had been extensively briefed and argued throughout the litigation, was the subject of Audi's motion in limine and its Rule 50(a) motion, and that the parties and the court were sufficiently on notice of what issue was at stake in the Rule 50(b) motion.

Andreas's argument turns on whether the district court properly looked to the Rule 50(a) pleadings in finding that the Rule 50(b) motion was sufficiently particular. Andreas does not dispute that if we consider the previous filings, the postjudgment motion was adequate. Our review is de novo, as the dispute involves the legal jurisdictional issue of whether the court properly looked to pleadings filed outside of the ten-day period to determine whether the Rule 50(b) motion was sufficiently particular. See Trimble v. Asarco, Inc., 232 F.3d 946, 959 (8th Cir.2000).

Rule 7 is a general rule that applies to all motions. The purpose of Rule 7's particularity requirement is to give notice of the basis for the motion to the court and the opposing party so as to avoid prejudice, "providing that party with a meaningful opportunity to respond and the court with enough information to process the motion correctly." Registration Control Sys., Inc. v. Compusystems, Inc., 922 F.2d 805, 807 (Fed.Cir.1990); see also Calderon v. Kan. Dep't of Soc. & Rehab. Servs., 181 F.3d 1180, 1186 (10th Cir.1999) ("By requiring notice to the court and the opposing party of the basis for the motion, Rule 7(b)(1) advances the policies of reducing prejudice to either party and assuring that `the court can comprehend the basis of the motion and deal with it fairly.'" (quoting 5 Wright & Miller, Federal Practice And Procedure § 1192 at 42 (2d ed.1990))). The particularity requirement should not be applied in an overly technical fashion when the purpose behind the rule is not jeopardized. See Cambridge Plating Co. v. Napco, Inc., 85 F.3d 752, 761 (1st Cir.1996) (citing 5 Wright & Miller, Federal Practice and Procedure, § 1192, at 43).

"Courts routinely take into consideration other closely filed pleadings to determine whether sufficient notice of the grounds for the motion are given and the opposing party has a fair opportunity to respond." Id. However, filings made after the filing period cannot save a deficient motion made within the period, because to do so would allow parties to eviscerate the purpose of the time limitation. See Riley, 1 F.3d at 726-27 (holding that subsequent memorandum of law in support of a notice of a Rule...