Adlife Mktg. & Commc'ns Co. v. Buckingham Bros., LLC
| Decision Date | 18 August 2020 |
| Docket Number | 5:19-CV-0796 (LEK/CFH) |
| Parties | ADLIFE MARKETING & COMMUNICATIONS COMPANY, INC., Plaintiff, v. BUCKINGHAM BROTHERS, LLC, Defendant. |
| Court | U.S. District Court — Northern District of New York |
Adlife Marketing & Communications Company, Inc. filed the present copyright infringement action against Buckingham Brothers, LLC on July 4, 2019. Dkt. No. 1 ("Complaint"). Defendant failed to respond to this action by the July 30, 2019 deadline. Dkt. No. 15. Currently before the Court is Plaintiff's unopposed motion for default judgment. See Dkt. Nos. 9 ("Declaration in Support"); 12 ("Plaintiff's Motion"); 13 ("Plaintiff's Memorandum"); 14 ("Liebowitz Declaration"); 15 ("Proposed Order"); 16 ("Affidavit of Service"). For the reasons stated below, Plaintiff's Motion is denied, and the Court imposes sanctions against Plaintiff's counsel.
"The following facts are taken from the [] Complaint and are assumed to be true for purposes of the instant motion." Chiquita Fresh N. Am., LLC v. Long Is. Banana Corp., No. 14-CV-982, 2018 WL 1786991, at *1 (E.D.N.Y. Feb. 28, 2018), report and recommendation adopted by 293 F. Supp. 3d 305 (E.D.N.Y. 2018). Plaintiff is an advertising agency specializing in design, digital marketing, print advertising, and photography. Compl. ¶ 1. Plaintiff is represented by the Liebowitz Law Firm, PLLC ("LLF"), with Richard Liebowitz as lead counsel. Defendant is a domestic limited liability company. Id. ¶ 6.
Plaintiff is copyright holder of a photograph of pork (the "Photograph"). The Photograph was properly registered with the United States Copyright Office. Id. ¶ 8. Defendant printed the Photograph in its weekly advertisements for its food products. Id. ¶ 1. Defendant did so without a license, permission, or consent from Plaintiff. Id. ¶¶ 9-10. Plaintiff believes Defendant's acts were "willful, intentional, and purposeful, in disregard of and indifference to Plaintiff's rights." Id. ¶ 14.
In the Complaint, Plaintiff sought an award of either (a) actual damages and Defendant's profits, gains, or advantages of any kind attributable to Defendant's infringement of the Photograph, or (b) statutory damages of up to $150,000 per copyrighted work infringed pursuant to 17 U.S.C. § 504. Id. ¶ 4. Plaintiff also sought its costs, expenses, attorney's fees pursuant to 17 U.S.C. § 505, and pre-judgment interest. Id. Defendant did not respond to the Complaint. Docket.
On September 13, 2019, in accordance with Federal Rule of Civil Procedure 55(a), Plaintiff requested an entry of default against Defendant. Dkt. No. 9. The Clerk of the Court approved Plaintiff's request for entry of default on September 17, 2019. Dkt. No. 10. Plaintiff's Motion and Plaintiff's Memorandum were filed on October 18, 2019. Dkt. Nos. 12-13. For violation of 17 U.S.C. § 501, Plaintiff seeks $30,000 in statutory damages for willful copyright infringement. Pl.'s Mem. ¶ 1. Additionally, Plaintiff seeks its costs, expenses, and attorney's fees pursuant to 17 U.S.C. § 505. Defendant failed to respond to Plaintiff's Motion. Docket.
"Rule 55(b) of the Federal Rules of Civil Procedure provides for the entry of default judgment in the event a defendant has failed to plead or otherwise defend in an action." Pert 35, Inc. v. Amari Aviation Ltd., No. 09-CV-448, 2010 WL 1257949, at *3 (N.D.N.Y. Mar. 5, 2010), report and recommendation adopted by No. 09-CV-448, 2010 WL 1257950 (N.D.N.Y. Mar. 25, 2010); see also Fed. R. Civ. P. 55(b). "That rule, in tandem with the Northern District of New York Local Rule 55.2, sets forth certain procedural prerequisites that must be met before a default judgment may be entered[.]" Buttnugget Publ. v Radio Lake Placid, Inc., 807 F. Supp. 2d 100, 105 (N.D.N.Y. 2011) (quoting Pert 35, Inc., 2010 WL 1257949, at *3). A proper motion for default judgment requires a plaintiff to (1) show that the defendant was properly served with a summons and complaint; (2) obtain the clerk's entry of default; and (3) provide an affidavit. Id.; Fed. R. Civ. P. 55(b)(2); N.Y.N.D. L.R. 55.1 and 55.2.
"The affidavit must set forth that: (1) the party against whom judgment is sought is not an infant, incompetent, or in military service; (2) the party against whom judgment is sought has defaulted in appearance in the action; (3) service was properly effected under Federal Rule of Civil Procedure 4; (4) the amount sought is justly due and owing, and no part of that amount has been paid; and (5) the disbursements sought to be taxed have been made in the action or will necessarily be made or incurred." Golub Corp. v KLT Indus., Inc., No. 18-CV-1125, 2020 WL 3254133, at *2 (N.D.N.Y. June 16, 2020) (Kahn, J.) (citing L.R. 55.2(a)).
"When a default judgment is entered, the defendant's failure to respond constitutes an admission of the well-pleaded factual allegations in the complaint, except as to claims relating to damages." Coated Fabrics Co. v Mirle Corp., No. 06-CV-5415, 2008 WL 163598, at *4 (E.D.N.Y. Jan. 16, 2008) (citing Greyhound Exhibitgroup, Inc. v. E.L.U.L Realty Corp., 973F.2d 155, 158 (2d Cir. 1992)). Even so, "prior to entering default judgment, a district court is required to determine whether the [plaintiff's] allegations establish [the defendant's] liability as a matter of law." Terry v. Masterpiece Adv. Design, No. 17-CV-8240, 2018 WL 3104091, at *1 (S.D.N.Y. June 21, 2018) (quoting City of New York v. Mickalis Pawn Shop, LLC, 645 F.3d 114, 137 (2d Cir. 2011)) (internal quotation marks omitted) (alterations in original); see also W.A.W. Van Limburg Stirum et al. v. Whalen et al., No. 90-CV-1279, 1993 WL 241464, at *4 (N.D.N.Y. June 29, 1993) () (internal quotation marks omitted).
"The Second Circuit has 'generally disfavored' granting default judgment because it is an extreme remedy, and while it may be efficient, the court must weigh its interest in expediency against the need to afford all litigants the opportunity to be heard." Stridiron v. Community Broadcasters, LLC, No. 19-CV-108, 2019 WL 2569863, at *2 (N.D.N.Y. June 21, 2019) (quoting Enron Oil Corp. v. Diakuhara, 10 F.3d 90, 95-96 (2d Cir. 1993)). Default is particularly disfavored "when the case presents issues of fact," Meehan v. Snow, 652 F. 2d 274, 277 (2d Cir. 1981), or "when substantial sums of money are demanded." Diakuhara, 10 F.3d at 96. "[W]hen the case presents issues of fact . . . doubts are to be resolved in favor of a trial on the merits." Meehan, 652 F. 2d at 277.
"With respect to motions for entries of default, district courts consider three factors: '(1) whether the default was willful; (2) whether setting aside the default would prejudice the adversary; and (3) whether a meritorious defense is presented.'" Carey v. Intl. Consol. Companies, Inc., No. 09-CV-2694, 2009 WL 4891812, at *2 (E.D.N.Y. Dec. 11, 2009) (quoting Diakuhara, 10 F.3d at 96)).
Ordinarily, motions for default judgment are relatively straightforward, but due to the behavior of Plaintiff, and more particularly, Plaintiff's counsel, this motion is more complex. While Liebowitz has satisfied the procedural requirements,1 he has failed to state a claim for statutory damages and attorney's fees. Moreover, Liebowitz has employed misleading citations and frivolous2 assertions in an attempt to recover an unjustifiably high amount of statutory damages and attorney's fees. Accordingly, Liebowitz and his firm are subject to sanctions under the court's inherent authority.
To adequately plead a copyright infringement claim, the plaintiff must allege: (1) ownership of a valid copyright that is registered in accordance with the statute; (2) unauthorized copying of the copyrighted work; and (3) by what acts and during what time the defendant infringed the copyright. Jose Luis Pelaez, Inc. v. McGraw-Hill Glob. Educ. Holdings LLC, No. 16-CV-5393, 2017 WL 3432303, at *2 (S.D.N.Y. Aug. 9, 2017) (citing Kelly v. L.L. Cool J., 145 F.R.D. 32, 36 (S.D.N.Y. 1992)), aff'd sub nom. Kelly v. L.L. Cool J, 23 F.3d 398 (2d Cir. 1994); Jorgensen v. Epic/Sony Records, 351 F.3d 46, 51 (2d Cir. 2003).
More particular requirements apply to claims for statutory damages and attorney's fees. Under § 412 of the Copyright Act, "a prevailing plaintiff is not entitled to statutory damages, orto receive attorney's fees under the Act, if '(1) any infringement of copyright in an unpublished work commenced before the effective date of its registration; or (2) any infringement of copyright commenced after the first publication of the work and before the effective date of its registration, unless such registration is made within three months after the first publication of the work.'" McCarthy v. Stollman, No. 06-CV-2613, 2010 WL 11586609, at *9 (S.D.N.Y. Feb. 23, 2010) (quoting 17 U.S.C. §412); see also Singh v. Famous Overseas, Inc., 680 F. Supp. 533, 535 (E.D.N.Y. 1988) (same).
Section 412 serves two fundamental purposes. "First, by denying an award of statutory damages and attorney's fees where infringement takes place before registration, Congress sought to provide copyright owners with an incentive to register their copyrights promptly." Derek Andrew, Inc. v. Poof Apparel Corp., 528 F.3d 696, 700 (9th Cir. 2008); see also H.R.Rep. No. 94-1476, at 158 (1976), as reprinted in 1976 U.S.C.C.A.N. 5659, 5774 (). "Second, § 412 encourages potential infringers to check the Copyright Office's database." Derek Andrew, 528 F.3d at 700; see also Johnson v. Jones, 149 F.3d 494, 505 (6th Cir.1998); Morgan v. Hawthorne Homes, Inc., No. 04-CV-1809, 2011 WL 2181385, at *3 (W.D. Pa....
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