The opinion of the court was delivered by: DUFFY
KEVIN THOMAS DUFFY, D.J.:
Plaintiff moves for consolidation of the actions Childers v. High Society, et al., No. 82 Civ. 1905 (S.D.N.Y. filed March 26, 1982) ("Action I"), and Childers v. Kable News Company, Inc., No. 82 Civ. 7290 (S.D.N.Y. filed November 4, 1982) ("Action II"), pursuant to Fed. R. Civ. P. 42(a). Defendant in the second action, Kable News Company, Inc. ("Kable News"), cross moves for a stay pending a more complete resolution of the first case.
The complaint in Action I against defendants High Society Magazine, Inc. and defendant Drake Publishers charged that these companies had infringed on plaintiff's copyright by exhibiting plaintiff's copyrighted photographs on three separate covers of High Society Magazine. The complaint in Action II charges defendant Kable News also with violations of the copyright laws for its distribution of these magazines. This second complaint was brought while plaintiff's summary judgment motion was pending in Action I.
On February 3, 1983 I granted plaintiff's motion for summary judgment against defendants High Society and Drake on the issue of liability, 557 F. Supp. 978. Plaintiff then moved to consolidate the two actions, while at the same time the defendants in Action I moved for reargument. Kable News opposes consolidation and moves for a stay of Action II. In an opinion on April 20, 1983, 561 F. Supp. 1374, I upheld my previous summary judgment decision holding defendants in Action I liable for copyright infringement.
Rule 42(a) provides that "when actions involving a common question of law or fact are pending before the court, it may order a joint . . . trial of any or all the matters in issue in the actions. . . ." In the present circumstances, consolidation would be inappropriate. Neither of my prior decisions affects Kable News' liability. Its liability as a distributor is likely to involve different legal and factual questions than the liability of the direct infringer. Moreover, the only matter left for determination in the case involving High Society and Drake is the calculation of damages. Liability, however, still need be resolved as against Kable News. Accordingly, plaintiff's motion for consolidation is denied.
Kable News moves for a stay of its case pending resolution of High Society and Drake's motions for reargument, and any potential appeal. Kable News cannot have it both ways. The motion for reargument has been decided already, adversely. Having declined to consolidate Kable News' case with the prior case against High Society and Drake, I do not find it warranted to stay the former action pending resolution of a potential appeal in a different case.
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