P First, the request was clearly untimely, filed almost two months after the March Order.
P Second, the request for reargument -- which plaintiff carefully termed a request for "reconsideration" in order to sidestep the local rules -- was contained within papers that were supposed to serve both as opposition papers to defendants' motions for sanctions as well as reply papers with regard to plaintiff's 54(b) motion.
Such motion practice clearly violates both Rule 7 of the Fed. R. Civ. Proc. as well as Local Rule 3 of this District. Anyone admitted to practice in this court is required to know and abide by such basic rules.
P Third, counsel for plaintiff had previously requested an extension of time to file the opposition and reply papers with regard to the other pending motions but never mentioned the possibility that additional relief would be sought. Counsel for plaintiff could have easily apprised the court of its intent to make this request or could have even sought leave to file a request for reconsideration upon proper support and justification, which would have allowed the court to consider the request and establish a briefing schedule that might have been appropriate were such relief granted. This type of motion practice has the potential to disrupt the court's calendar and prejudices the opposing party's ability to defend itself.
P Fourth, plaintiff's request was not inadvertent or innocent. Rather, it was prominently presented as plaintiff's first argument in the memorandum, filling almost half the document.
P Fifth, and perhaps most important, the arguments plaintiff proffered in support of the motion for "reconsideration" were the same arguments made before this court on the original summary judgment motion. Indeed, plaintiff's memorandum of law actually cites to both the affidavit of prior counsel submitted in opposition to the original motion as well as the Pre-Trial Order, both of which were before the court on the original motion for summary judgment. (See Plf.'s May 20, 1996 Mem. of Law, at 4 and 7.)
P Sixth, in clear violation of Local Rule 3(j) which requires leave of court when a party wishes to file an affidavit in support of a motion for reargument and without setting forth any justification why plaintiff had not submitted such information prior to this court's March decision, plaintiff, admitting that the definition of the software utilized by plaintiff was "perhaps confusing", submitted an affidavit which purported to "eliminate any doubt on this subject" by "detailing the programs encompassed" by plaintiff's purportedly copyrighted work. (Plf.'s May 20, 1996 Mem. at 4-5.) In other words, plaintiff's claims were dismissed on the ground that plaintiff had not described its purportedly copyrighted work in such a way that would raise a genuine issue of material fact related to the elements of plaintiff's case. Two months later, without providing any reason why such information was not provided earlier, plaintiff, in support of its "request for reconsideration", submitted an affidavit which purported to describe the software.
In the instant case, the facts set forth above make it obvious that plaintiff's ill-advised and procedurally improper motion practice related to the request for reargument was carried out with the sole purpose of delaying the proceeding so as to postpone not only the trial on defendants' counterclaims but also the court's consideration of defendants' motion for attorney's fees. Plaintiff's counsel may believe in the arguments proffered, but such arguments are appropriately made before the court of appeals, not through an untimely and procedurally infirm motion. "Where litigants have once battled for the court's decision, they should neither be required, nor without good reason permitted, to battle for it again." Zdanok v. Glidden Co., 327 F.2d 944, 953 (2d Cir.), cert. denied, 377 U.S. 934, 12 L. Ed. 2d 298, 84 S. Ct. 1338 (1964). The circumstances surrounding plaintiff's submission of the request for reargument -- its untimely nature, the failure of plaintiff's counsel to advise the court or opposing party of its intent to interpose the request even when it had the clear opportunity to do so, the utterly baseless and repetitive nature of the motion, the unjustified and improper supporting affidavit -- all lead the court to the inescapable conclusion that the purposes of the request were to delay the proceedings and to harass defendants. Accordingly, defendants are awarded attorney's fees for the cost of defending against the request for reargument. Virgin Atlantic Airways, Ltd. v. National Mediation Bd, 132 F.R.D. 342, 346 (E.D.N.Y. 1990), aff'd, 956 F.2d 1245 (2d Cir.), cert. denied, 506 U.S. 820, 121 L. Ed. 2d 34, 113 S. Ct. 67 (1992).
In support of their request for attorney's fees related to the request for reargument, counsel for defendants has submitted an application setting forth the amount of attorney time spent defending against the request for reargument. Although plaintiff alleges that defendants have not distinguished between that time spent responding to the reargument request and that time spent addressing other, legitimate issues raised by plaintiff, it appears that counsel for defendants has indeed done so. (Defs.' App. for Atty's Fees, at 1 n.1.) Defendants' application has two other problems, however: it fails to substantiate the hourly rate assessed for each attorney's labor and it fails to allege that the records reflect the contemporaneous billing records maintained by the firm. See, e.g., New York Ass'n for Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1147-1148 (2d Cir. 1983). Accordingly, in order for the court to award defendants reasonable attorney's fees, counsel for defendants must submit a new, fully substantiated fee application.
For the reasons set forth above, defendants' motions for costs, attorney's fees and sanctions related to the defense of the underlying copyright claims is stayed pending a resolution of the trial on defendants' counterclaims and the appeal of the March Order. Defendants' request for sanctions related to the filing of plaintiff's request for reargument is granted to the extent that defendants are awarded counsel fees for defending against this request.
New York, New York
Dated: August 1, 1996
Constance Baker Motley
United States District Judge