The opinion of the court was delivered by: Robert P. Patterson, Jr., District Judge.
In a Decision dated April 12, 1990, as amended April 16,
1990, this Court ordered that judgment be entered for the
defendants, with costs and attorneys' fees of the defendants
and third-party defendants to be paid by plaintiff. 734 F. Supp. 644
Plaintiff now moves for an order vacating and setting aside
the Court's findings of fact and conclusions of law and
granting a new trial, and, in a separate motion, for an order
vacating the award of costs and attorneys fees.*fn1
1. Plaintiff's Motion For A New Trial
Although not specified in the motion papers, the Court will
treat plaintiff's motion for a new trial as a motion made under
Fed.R.Civ.P. 59. Defendants argue that the motion should be
denied because it is untimely and without merit. For the
reasons stated in my memorandum order of May 18, 1990, the
motion is deemed timely. For the reasons noted below, however,
the motion is found to be without merit.
"Three grounds have been recognized in non-jury cases as a
basis for granting a new trial: (1) manifest errors of law, (2)
manifest errors of fact and (3) newly discovered evidence."
Agola v. Hagner, 678 F. Supp. 988, 991 (E.D.N.Y. 1987). Accord
Rosera v. International Harvester Co., 109 F.R.D. 143, 149
(E.D.Wis. 1986); Bell Telephone Laboratories Inc. v. Hughes
Aircraft Co., 73 F.R.D. 16, 20 (D.Del. 1976), aff'd,
564 F.2d 654 (3rd Cir. 1977), cert. denied, 435 U.S. 924, 98 S.Ct. 1489,
55 L.Ed.2d 518 (1978); 6A Moore's Federal Practice ¶ 59.07,
p. 59-72 (1989). Plaintiff has failed to show adequate support
for any of these three grounds and accordingly is not entitled
to a new trial.
Plaintiff argues that he did not receive a fair trial because
the Court denied his motion for a two-month continuance. This
case was five years old at the time, and plaintiff was given
notice on January 3, 1990 that the case was being placed on the
Court's trial calendar on February 20, 1990, at which time it
could proceed on 48 hours notice. A final pre-trial conference
was held on February 20, 1990 and the trial commenced on
February 23, 1990. This constitutes more than adequate
notice.*fn2 Accordingly, there is no basis for plaintiff's
claim that he had insufficient time to prepare for trial.
Finally, plaintiff argues that the Court erred in its
findings of fact. None of the issues raised by plaintiff,
however, were overlooked by the Court. Plaintiff simply
disagrees with the Court's findings rather than pointing to
"manifest errors of fact." There is therefore no basis for
granting a new trial. Rather than relitigate matters already
considered by this Court, plaintiff should address his
arguments to the Court of Appeals for the Second Circuit.
Accordingly, plaintiff's motion for a new trial is denied.
2. The Motion to Vacate the Award of Costs and Attorney's Fees
Although 17 U.S.C. § 505 expressly permits "a reasonable
attorney's fee to the prevailing party as part of the costs,"
the Second Circuit has limited the circumstances under which it
is appropriate to award attorneys' fees to a prevailing
defendant. Thus, defendants should only receive attorney's fees
when the plaintiff's claim is "objectively without arguable
merit." Diamond v. Am-Law Publishing Corp., 745 F.2d 142, 148
(2d Cir. 1984). In awarding defendants attorney's fees in the
present case, the Court was not provided with case law and did
not consider this interpretation of Section 505 by the Court of
Appeals. It does so now for the first time.
For several reasons, the Court is unable to say that
plaintiff's claim in this case was "objectively without
arguable merit." While ultimately determined to be unfounded,
the claim was colorable at the time it originally was brought.
As plaintiff points out, the Court's decision on the merits was
based in large part on two cases, Community for Creative
Non-Violence v. Reid, 846 F.2d 1485 (D.C. Cir. 1988), aff'd,
___ U.S. ___, 109 S.Ct. 2166, 104 L.Ed.2d 811 (1989), and
Whelan Associates, Inc. v. Jaslow Dental Laboratory, Inc.,
609 F. Supp. 1307 (E.D.Pa. 1985), aff'd, 797 F.2d 1222 (3d Cir.
1986), cert. denied, 479 U.S. 1031, 107 S.Ct. 877, 93 L.Ed.2d
831 (1987), both of which were decided after plaintiff's action
was commenced. The Supreme Court's discussion in the Reid
case, in particular, clarified prior decisions with respect to
the scope of "work for hire" as defined in the Copyright Law of
1976. Plaintiff's claim to the artistic work in question is
found to be colorable under the law as it existed prior to that
decision. In light of these circumstances, it would be
inappropriate to award attorney's fees to defendants for the
period prior to the Supreme Court's decision in Reid. The total
amount of fees requested gives added support to this
Since plaintiff did elect to proceed to trial after these
cases adverse to his position were reported, there remains the
question of the substantial fees incurred by defendants
subsequent to Reid and Whelan. It is debatable whether an
attorney who objectively evaluated plaintiff's claim at that
time would have concluded that the case had merit and should be
brought to trial. While this Court is reluctant, in most
circumstances, to question the objectivity of an attorney, it
appears that the personal relationship between plaintiff and
his attorney may have clouded the attorney's judgment.