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PEYSER v. SEARLE BLATT & CO.

February 9, 2004.

STEPHEN PEYSER d/b/a ONE BY DIANA and DIANE MOSS, Plaintiffs -v- SEARLE BLATT & CO., LTD., STEVE SEARLE, ALICE BLATT SEARLE, CAROL HORN, RONI RABL, INC., NEIMAN-MARCUS GROUP, INC., and E.N.K. PRODUCTIONS, INC.Defendants


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

OPINION AND ORDER

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 ...


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