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United States District Court, S.D. New York

February 9, 2004.


The opinion of the court was delivered by: GERARD E. LYNCH, District Judge


This case was reassigned to this Court upon the retirement of the Honorable Whitman Knapp, United States District Judge, in the summer of 2003. By that time, this litigation, which concerns claims of copyright infringement and trade dress, had already become protracted and contentious. The docket sheet reflects well over 200 entries in a case which has not yet passed the summary judgment stage as to all defendants. Over the years, the plaintiffs have filed a stunning array of motions, including repeated requests for rehearing or reconsideration of orders entered by Judge Knapp and the Honorable Michael Dolinger, United States Magistrate Judge (to whom the case had been referred for general pretrial supervision since August 2000).*fn1 Plaintiffs, Page 2 who have been proceeding pro se in this litigation since September 2000, have now filed another such request for reconsideration ("Motion for Reconsideration" or "Aff. I"), as well as a response to a Report and Recommendation from Judge Dolinger on a motion for attorneys' fees ("Aff. II"). Plaintiffs have also filed two additional affirmations, one "Detailing Their Serendipitous Discovery of Reassignment to Judge Lynch" ("Aff. III") and another `To Document Plaintiffs['] Monetary, Physical, and Emotional Status." ("Aff. IV").

When a case with this burden of prior orders is reassigned, the new judge is well advised to pay particular heed to the doctrine of "law of the case," and not to attempt a de novo review of all of the many orders and decisions made over a lengthy period by diligent and experienced judicial officers who have handled the case previously. At the same time, the Court must stand ready to consider any properly-filed motion, including a motion for reconsideration, on its merits. Accordingly, the Court has extensively reviewed the materials plaintiffs submitted, as well as the carefully-reasoned R&R. Even viewing plaintiffs" submissions liberally, they are without merit. The plaintiffs' objections will be overruled, and their attendant motions denied, except to the extent described below. Page 3

 I. Background

  The procedural history relevant to the motions before the Court is as follows. On August 2. 2000, Judge Knapp granted summary judgment for defendants Searle Blatt & Co., Ltd., and its principals ("the Searle defendants"), but allowed plaintiffs' claims to proceed against the remaining defendants.*fn2 See Peyser v. Searle Blatt & Co., Ltd., No. 99 Civ. 10785 (WK), 2000 WL 1071804 (S.D.N.Y. Aug. 2, 2000). The Searle defendants then moved for attorneys fees and costs. Judge Knapp granted defendants' motion on December 13, 2001.*fn3 See Peyser v. Searle Blatt & Co., Ltd., No. 99 Civ. 10785 (WK), 2001 U.S. Dist. LEXIS 20844 (S.D.N.Y. Dec. 13, 2001). The attorneys' fees motion was then referred to Magistrate Judge Dolinger for a Report and Recommendation ("R&R") regarding the calculation of the fee award. On December 4, 2003, Judge Dolinger issued an R&R, recommending an award of $20,689.11 in fees and disbursements. After this Court granted plaintiffs' requests for extension of time to file objections to the R&R, plaintiffs duly filed such objections, as well as the other motions and supporting papers described above, on February 2, 2004.

 II. Motion for Reconsideration and Ancillary Submissions

  Before turning to plaintiffs' objections to the R&R, the Court will address plaintiffs' papers styled "Plaintiffs' Affirmation in Support of a Motion for Reconsideration by Judge Lynch" ("Motion for Reconsideration" or "Aff. I"), and "Plaintiffs' Affirmation Detailing Their Serendipitous Discovery of Reassignment to Judge Lynch" ("Aff. III"). Recognizing that these Page 4 are pro se submissions, the Court has carefully reviewed these documents in an effort to identify any coherent claim of prejudice or legal error, and has found none. For the reasons stated below, the motions will be denied.

  Plaintiffs' submissions fail to state coherently the relief they seek, and to the extent that any requested relief can be gleaned from the papers, they fail to present any compelling, or even legitimate, justification for it. Plaintiffs' Motion for Reconsideration does not specify the provision of the Federal Rules of Civil Procedure under which it is brought,*fn4 nor does it clearly identify any particular Order of the Court that it seeks to address, making it impossible to determine with certainty whether the motion is timely. It appears not to be, as it raises questions or objections relating to orders entered on August 2, 2000, July 27, 2001, February 20, 2002, and March 24, 2003.*fn5

  Even if the Court could or would consider such untimely attacks on prior orders, the motion presents no discernable explanation of the relief it seeks. To call the long list of alleged errors and inaccuracies hypertechnical would dignify them excessively. Plaintiffs complain of Page 5 alleged changes of the names of parties, the dates on which papers were docketed, and whether the middle initial of one of defendants' lawyers is or is not followed by a period on various correspondence. While their complaints represent an impressive, albeit arguably obsessive, dissection of the docket sheet, nothing in the papers presents any reason why the entry of judgment in favor of the Searle defendants was erroneous, or explains how plaintiffs have been prejudiced in any way by any of the clerical irregularities alleged.

  The one intelligible claim that does run through the papers is that the plaintiffs' claim for contributory copyright infringement (Compl. ¶¶ 88-92), which both Judge Dolinger and Judge Knapp describe as having been withdrawn, see R&R at 7; Peyser, 2001 U.S. Dist. LEXIS 20844, at *16-18, was never in fact properly withdrawn. Judge Knapp noted that the claim was withdrawn in plaintiffs' opposition to the summary judgment motion. Id. Plaintiffs have not argued that their papers in opposition to the summary judgment motion did not withdraw the claim, or that those papers were never in fact submitted to the Court. Indeed, they acknowledge that their former counsel withdrew the claim in a memorandum of law in opposition to summary judgment apparently submitted on May 25, 2000 (Aff. I ¶ 9). Rather, they argue that because these papers were never properly filed or docketed, the claim for contributory infringement survives. (See id. ¶¶ 9-13.)

  Plaintiffs appear to be correct that there was an error in filing the opposition papers on the summary judgment motion. Plaintiffs' opposition does not appear on the docket sheet, which indicates a failure in either docketing or filing. The docket sheet does, however, reflect an order dated May 24, 2000, resetting the deadline for plaintiffs' submission of the papers to the following day, May 25. The chambers file contains a copy of the papers in question bearing the Page 6 original signature of plaintiffs' former attorney, Steven Horowitz, but without any indication that it was ever received by Clerk of the Court. This document explicitly withdraws the contributory negligence claim. (See P. Mem. Opp. S.J. dated May 25, 2000, 58, 60 ("Point VIII — The Contributory Copyright Infringement Claim Against Searle is Withdrawn").) Thus, it is doubtless the document to which Judges Knapp and Dolinger, as well as the plaintiffs, refer.

  Even if plaintiffs had brought this error to the Court's attention at an earlier date,*fn6 plaintiffs have shown no reason why this docketing error is material, nor can the Court discern one. Judge Knapp's chambers evidently received the plaintiffs' opposition papers: what appears to be the original document exists in the chambers file, and the arguments it contained clearly informed the August 2, 2000, opinion granting summary judgment to the Searle defendants and the December 13, 2001, decision on attorneys fees. Moreover, the docket sheet reflects that defendants filed a reply on June 7, 2000, leading to the conclusion that defendants were served with a copy and duly responded to whatever arguments it contained. Thus, both the Court and defendants undoubtedly received and relied upon plaintiffs' submission withdrawing the contributory infringement claim. Accordingly, there is no merit to plaintiffs' paradoxical contention that the Court's ruling is void because the papers were not docketed. (See Aff. I ¶ 13.)

  To the extent plaintiffs argue that the withdrawal of their claim was invalid because it was made by counsel on their behalf, or because an amended complaint was not served, they fare no better. Claims may be, and routinely are, waived or withdrawn without the filing of an amended Page 7 complaint. Plaintiffs are bound by the actions of their former attorney on their behalf, and in the absence of any showing of prejudice, plaintiffs may not now use the clerical error with respect to filing or docketing to avoid the consequences their former counsel's actions. See Link v. Wabash R. Co., 370 U.S. 626, 633 (1962) ("Petitioner voluntarily chose this attorney as his representative in the action, and he cannot now avoid the consequences of the acts or omissions of this freely selected agent. Any other notion would be wholly inconsistent with our system of representative litigation, in which each party is deemed bound by the acts of his lawyer-agent and is considered to have `notice of all facts, notice of which can be charged upon the attorney.'").

  At any rate, plaintiffs suffered no prejudice from the withdrawal of this claim. The claim for contributory infringement was asserted solely against the Searle defendants, who were dismissed from the case in Judge Knapp's August 2, 2000, opinion and order on grounds of laches. See Peyser, 2000 WL 1071804, at *7-*9. Thus, even had the contributory infringement claim not been withdrawn, it would have been dismissed or equitably barred. Indeed, plaintiffs benefitted from the withdrawal of the claim, as Judge Knapp relied on the withdrawal as a reason for limiting the award of attorneys' fees against plaintiffs. See Peyser, 2001 U.S. Dist. LEXIS 20844, at *20 C'[A]s Plaintiffs withdrew their contributory infringement claim against the Searle Defendants in the course of litigating the motion for summary judgment, the Searle Defendants may only recover for the fees they incurred in defending against that claim until the date on which Plaintiffs withdrew that claim.").

  Similarly, plaintiffs' lengthy affirmation regarding the "serendipitous discovery" of the reassignment of the case is completely mystifying. As with their numerous claims of trivial inconsistencies in the record, plaintiffs complain of no prejudice or inconvenience from any delay Page 8 in notification of the change in the assigned judge — there could be none, since the matter was in any event referred to Judge Dolinger's supervision at the time — nor do they allege any identifiable impropriety or error on anyone's part, or seek any particular relief from the Court.*fn7

  In short, the difficulty with plaintiffs' submissions is not a failure of proper legal form or lawyerly art, but a simple failure to set forth any basis for relief The Federal Rules were put in place "to secure the just, speedy, and inexpensive determination of every action." See Fed.R.Civ.P. 1. Plaintiffs appear to have lost track of these goals in their single-minded focus on clerical errors and technicalities. They have utterly failed to challenge in a straightforward manner the merits of any decision of the Court, or to assert that any substantive right has been abridged. "It is too late in the day and entirely contrary to the spirit of the Federal Rules of Civil Procedure for decisions on the merits to be avoided on the basis of such mere technicalities/' Foman v. Davis, 371 U.S. 178, 181 (1962). In particular, plaintiffs completely fail to address, much less to identify any error in, Judge Knapp's finding that their delay in notifying the Searle defendants of their claims was "inexcusable," and that as a result those defendants suffered "appreciable prejudice" that was "clear-cut and apparently irreparable." Peyser, 2000 WL 1071804 at *8. Plaintiffs' submissions are without merit, and to the extent they seek any intelligible relief from the Court, the motions will be denied. Page 9

 III. Objections to R&R

  Plaintiffs' affirmation overtly addressed to the R&R (Aff. II) likewise lacks substance. The affirmation principally reiterates the content of various past submissions filed by defendants with respect to motions long ago decided, and has little relevance to the sole issue addressed in the R&R, which is the calculation of the amount of a fee award that Judge Knapp ordered more than two years ago. Nothing in plaintiffs' submission addresses Judge Dolinger's careful and accurate statement of the law governing the calculation of fee awards, the facts he found, or his application of the legal standard to those facts. Judge Dolinger's meticulous dissection of defendants' application resulted in a reduction by nearly a third of the amount claimed by defendants, and reflects a diligent review of the record, to which plaintiffs offer no meaningful opposition. To the extent that the document in question purports to object to the calculation of the fee award, the objections are overruled and Judge Dolinger's calculations are adopted as the Opinion of the Court.

  One final set of papers (Aff. IV) must be considered, however. After carefully and correctly calculating the fee award, Judge Dolinger noted that Judge Knapp's fee decision directed that the ultimate award "should not be financially ruinous to the plaintiffs." (R&R at 13, citing Peyser, 2001 U.S. Dist. LEXIS 20844, at *20 (Dec. 13, 2001).) Judge Dolinger then went on to note that despite plaintiffs' "gargantuan" submissions (R&R at 2), the record before him contained "no evidence . . . that would cast any light on the plaintiffs' financial wherewithal at the time of the fee application or the impact that the proposed fee award would have on them." (R&R at 14.) Accordingly, noting that "plaintiffs were on clear notice of the potential relevance of this issue . . . and chose not to address the matter despite the voluminousness of their numerous Page 10 filings" (id.), Judge Dolinger declined to reduce the recommended award on "speculation" that it would cause serious financial hardship (id.).

  Perhaps in an effort to respond to this issue, plaintiffs submit, separately from the objection to the fee recommendation, yet another document, captioned "Plaintiffs' Affirmation to Document Plaintiffs['] Monetary, Physical and Emotional Status" (Aff. IV). Much of the document addresses recent deaths in plaintiffs' families and plaintiffs' claims that their health has suffered as a result of the alleged wrongs of the defendants, and is at best marginally relevant to the fee issue. However, plaintiffs do recite various living and litigation expenses they have incurred (Aff. IV ¶¶ 26, 31, 33, 34, 40, 41), and debts they claim to owe (id. ¶¶ 25-27, 29, 35-39). The submission thus addresses, at least indirectly, the potential effect on plaintiffs of the recommended fee award.

  Conspicuously absent, however, is any direct statement of income or assets. Plaintiffs make various statements implying that they lack resources (see id. ¶¶ 12, 21), but stop short of simply listing their assets or income. A statement that "[w]e are forced to subsist on a small pension [plaintiff Moss] has and some insurance" (id. ¶ 12), or that "[w]e have exhausted all savings" (id.) is insufficiently precise, in that it does not expose the affiant to the risk of a successful perjury prosecution if the "insurance" amount should turn out to be substantial or should the plaintiffs have investments that could be described as something other than "savings." Such phrasing may reflect the artlessness of non-lawyers rather than the artfulness of a clever evader of truth, but whatever the motivation, the affirmation is deficient in that it lacks a simple and direct balance sheet or earnings statement that would permit the Court to assess plaintiffs' ability to pay a fee award without undue hardship. Page 11

  Given the belated filing of even this degree of financial information, the Court would be justified in adopting Judge Dolinger's R&R and awarding the recommended fees. However, plaintiffs are pro se, and whatever distractions may be presented by their other submissions, the financial claims presented in the "Monetary . . . Status" affirmation are sufficiently suggestive of financial hardship that it is reasonable to give plaintiffs a chance to make up the deficiency of their submission. As Judge Knapp stated in his original decision on attorneys fees, "the aims of the Copyright Act `are compensation and deterrence, but not ruination.'" Peyser, 2001 U.S. Dist. LEXIS 20844 at *20, citing Lieb v. Topstone Industries, Inc., 788 F.2d 151, 156 (3d Cir. 1986); see also American Metropolitan Enterprises of New York, Inc. v. Warner Bros. Records, Inc., 389 F.2d 903, 905 n. 2 (2d Cir. 1968) (noting that it was proper for district court to take solvency into account in awarding fees under Copyright Act).

  Accordingly, plaintiffs may have until February 23, 2004, to submit sworn complete statements of assets and liabilities, and sworn statements of income received in 2000, 2001, 2002, and 2003, supported by copies of IRS forms 1040 submitted for the 2001 and 2002 tax years.*fn8 No other submissions on this issue will be accepted or considered, and no extensions of this deadline will be granted. If plaintiffs fail to provide this information by the appointed date, the R&R will be adopted in full, and a fee award entered accordingly. Page 12


  Plaintiffs' motions for reconsideration are denied. All objections to the calculation of the fee award are overruled, except that, to the extent plaintiffs contend that the award would be a financial hardship, plaintiffs will be permitted to supplement their submission, if they choose to do so, by the presentation of specific financial information as described above, by February 23, 2004. No further extensions of this deadline will be granted for any reason. The Clerk is respectfully directed to docket plaintiffs' memorandum in opposition to summary judgment dated May 25, 2000, in order to complete the record of this case.


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