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M. Lady, LLC v. AJI

April 29, 2009

M. LADY, LLC, PLAINTIFF,
v.
AJI, INC. AND ANTHONY J. IATI, DEFENDANTS.



The opinion of the court was delivered by: Pitman, United States Magistrate Judge

OPINION AND ORDER

I. Introduction

Plaintiff, M. Lady, LLC ("Lady"), brings this action against AJI, Inc. ("AJI") and Anthony J. Iati (collectively, "defendants") alleging copyright infringement. On September 19, 2007, I granted plaintiff's motion for summary judgment on its copyright infringement and vicarious infringement claims (Docket Item 33). Plaintiff now moves for an award of $60,000 in statutory damages and $14,846.65 in attorneys' fees and costs.

The parties consented to my exercising plenary jurisdiction in this matter pursuant to 28 U.S.C. § 636(c). For the reasons set forth below, plaintiff's motion is granted in part.

II. Procedural History

Plaintiff commenced this action against Dillard's Inc. ("Dillard's") on January 11, 2006. Dillard's answered the complaint on February 28, 2006 and promptly withdrew the accused merchandise from sale (Dillard's Answer to Plaintiff's Amended Complaint, dated May 1, 2006, ("Dillard's Ans.") at ¶ 48; Docket Item 13). Plaintiff subsequently filed an amended complaint adding AJI and Iati as defendants. Dillard's answered the Amended Complaint by denying many of the allegations and asserting cross-claims against AJI, its supplier, alleging breach of warranty of non-infringement (Dillard's Ans. at ¶ 47). On September 6, 2006, defendant Dillard's was dismissed from this action with prejudice pursuant to Fed.R.Civ.P. 41(a)(1)(ii). In 2007, I granted plaintiff's motion for summary judgment on both its copyright infringement and vicarious infringement claims (Docket Item 33). Defendants did not answer either of the complaints in this action nor did they file any papers in opposition to plaintiff's motion for summary judgment. Defendants did, however, respond to plaintiff's interrogatories.

After a conference held on October 30, 2007, attended by plaintiff but not defendants, I issued a Scheduling Order directing plaintiff to serve and file proposed findings of fact and conclusions of law with respect to the amount of damages to be awarded no later than November 13, 2007 and directing defendants to submit responsive materials by November 27, 2007 (Docket Item 34). My Scheduling Order further provided that if defendants:

(1) FAIL TO RESPOND TO PLAINTIFF'S SUBMISSIONS, OR (2) FAIL TO CONTACT MY CHAMBERS BY NOVEMBER 27, 2007 AND REQUEST AN IN-COURT HEARING, IT IS MY INTENTION TO ISSUE A REPORT AND RECOMMENDATION CONCERNING DAMAGES ON THE BASIS OF PLAINTIFF'S WRITTEN SUBMISSIONS ALONE WITHOUT AN IN-COURT HEARING. See Transatlantic Marine Claims Agency, Inc. v. Ace Shipping Corp., 109 F.3d 105, 111 (2d Cir. 1997); Fustok v. ContiCommodity Services Inc., 873 F.2d 38, 40 (2d Cir. 1989) ("[I]t [is] not necessary for the District Court to hold a hearing, as long as it ensured that there was a basis for the damages specified in a default judgment.") (Emphasis in original).

A copy of my November 1, 2007 Scheduling Order was sent to defendants at the addresses at which they were served.

Plaintiff timely submitted proposed findings of fact and conclusions of law in response to my November 1, 2007 Scheduling Order. Defendants has not made any submission to me, nor have they contacted my chambers in any way. Accordingly, on the basis of plaintiff's written submissions alone, I make the following findings of fact and conclusions of law.

III. Findings of Fact

A. The Parties

1. Plaintiff Lady is a designer and vendor of handmade jewelry to high-end department stores and specialty stores. (see Plaintiff's Memorandum of Law in Support of Plaintiff's Request for Statutory Damages and Attorney's Fees, dated November 5, 2007, ("Plf. Mem.") at 2).

2. Defendant AJI is a New York corporation that imports and sells jewelry and other products to retail stores (Plaintiff's Statement of Material Facts as to Which There is No Genuine Issue to be Tried, Submitted Pursuant to Rule 56.1 ("Pltf. 56.1") at ¶ 2). AJI has its principle office at 718 Fulton Street, Mount Vernon, New York (Amended Complaint, dated March 27, 2006, at ¶ 6; Docket Item 12).

3. Anthony J. Lati is the President, Chief Executive Officer, and Chairman of AJI (see Pltf. 56.1 at ¶ 3; Copy of Entity Information for AJI from New York State, Department of State, Division of Corporations Website ("Entity Information"), attached as Exhibit 6 to the Declaration of Richard S. Schurin, Esq. in Support of Plaintiff's Motion for Summary Judgment, dated Jan. 16, 2007 ("Schurin Sum. Judg. Decl.")).

B. Plaintiff's Business and Defendants' Infringement

4. Plaintiff is the exclusive owner of copyrights in two jewelry designs created by Mindi Lam (Pltf. 56.1 at ¶ 6). The first is titled "Lady Brooch MBM" and is the subject of U.S. Copyright Registration No. VA 1-252-810 (see Plf. Mem. at 2; Copy of U.S. Copyright Registration No. VA 1-252-810, attached as Exhibit 2 to Schurin Sum. Judg. Decl.). Lady Brooch MBM, which is composed of colored beads and wire, is designed in the shape of a flower with fourteen petals, two leaves, and a stem (see Pltf. 56.1 at ¶ 7; Samples of Plaintiff's Jewelry, attached as Exhibit 1 to Schurin Sum. Judg. Decl.). The second jewelry design is titled "SBM-2" and is the subject of U.S. Copyright Registration No. VA 1-296-962 (see Pltf. 56.1 at ¶ 11; Copy of U.S. Copyright Registration No. VA 1-296-962, attached as Exhibit 2 to Schurin Sum. Judg. Decl.). SBM-2, which is also made of colored beads and wire, is designed in the shape of a flower, with eight petals, two leaves, and a stem (see Pltf. 56.1 at ¶ 7; Samples of Plaintiff's Jewelry, annexed as Exhibit 1 to Schurin Sum. Judg. Decl.).

5. The Lady Brooch MBM sells at retail for approximately $250 and the SBM-2 sells for approximately $150 (Declaration of Mindi Lam, dated November 9, 2007, ("Lam Decl.") at ¶ 10).

6. The Lady Brooch and the SBM-2 have been commercially successful and have been featured in magazine articles and featured on the television program entitled The View (Lam Decl. ¶¶ 6, 10). Women's Wear Daily has described the Lady Brooch as "the talk of Fifth Avenue" ("Coming Up Roses", Women's Wear Daily, May 2003, attached as Ex. B to the Plf. Mem.).

7. Sometime prior to December 2005, an unidentified "jewelry buyer" at Dillard's requested that defendants manufacture and supply a particular piece of jewelry (Lam Decl. ΒΆΒΆ 15-19; Defendant AJI's Answer to Plaintiff's Interrogatories, dated Oct. 17, 2006 ("Def. Answers"), Nos. 14, 16, attached as Ex. G to Plf. Mem.). Dillard's provided defendants ...


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