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Poparic v. Jugo Shop

March 31, 2010

ALEKSANDER POPARIC, PLAINTIFF,
v.
JUGO SHOP, EUROPEAN MUSIC AND VIDEO STORE, AND SVETLANA ANICIC, DEFENDANTS.



The opinion of the court was delivered by: Matsumoto, United States District Judge

MEMORANDUM & ORDER

Presently before the court in this copyright infringement action are plaintiff's objections to Magistrate Judge James Orenstein's December 16, 2009 Report and Recommendation (the "R&R") (Doc. No. 14) regarding plaintiff's motion for default judgment and December 30, 2009 Supplemental Report and Recommendation ("Suppl. R&R") (Doc. No. 17), familiarity with which is presumed. (See Doc. No. 19, Plaintiff's Objections ("Pl. Obj").) For the reasons set forth herein, plaintiff's objections are overruled and default judgment shall be entered in accordance with the December 16, 2009 R&R.

BACKGROUND

A. Procedural History

On May 27, 2009, plaintiff moved for default judgment against defendants European Music and Video Store ("European") and Svetlana Anicic ("Anicic").*fn1 (Doc. No. 7.) By Order dated June 3, 2009, plaintiff's motion for default judgment was referred to Magistrate Judge Orenstein "to conduct an inquest as to jurisdiction, damages, attorneys['] fees, and injunctive relief."*fn2 (Doc. No. 10, Referral Order.) On December 16, 2009, Magistrate Judge Orenstein issued a thorough Report and Recommendation concerning plaintiff's motion for default judgment. On December 28, 2009, three business days before the deadline for filing objections to the R&R, plaintiff filed a notice in which he purported voluntarily to dismiss all claims without prejudice pursuant to Fed. R. Civ. P. 41(a)(1)(A)(i). (See Doc. No. 16, Notice of Voluntary Dismissal.) Thereafter, on December 30, 2009, Magistrate Judge Orenstein issued another thoughtful Supplemental Report and Recommendation ("Supplemental R&R") recommending that the court vacate plaintiff's Notice of Voluntary Dismissal and order plaintiff "to show cause why he should not be required to elect either dismissal of his Complaint with prejudice or the entry of judgment on the basis of his pending motion, subject to any timely objections he may have to the R&R." (Doc. No. 17, Supplemental R&R at 1, 10.)

By Order to Show Cause filed on February 18, 2010, the court, inter alia, vacated without prejudice plaintiff's Notice of Voluntary Dismissal to retain jurisdiction over this matter and directed plaintiff to show cause why he should not be required to elect either dismissal of his Complaint with prejudice or the entry of judgment pursuant to the R&R issued in response to his default judgment motion. (Doc. No. 20, Order to Show Cause, at 3.) The court also directed "plaintiff and his counsel" each to show cause why the court should not impose sanctions upon plaintiff or his counsel pursuant to Fed. R. Civ. P. 11, explaining the legal and factual bases upon which the plaintiff's state law claims are grounded, and the bases for believing that such state law had any bearing on the instant action. (Id.)

B. Response to Show Cause Order

On February 24, 2010, plaintiff's counsel, David N. Tarlow, responded to the court's Order to Show Cause. (Doc. No. 22, Declaration of David N. Tarlow ("Tarlow Decl.").) In his response, Mr. Tarlow states that he has represented plaintiff Aleksander Poparic ("Poparic") since 2005 and, during that time, he has commenced actions on plaintiff's behalf in an effort to "sto[p] infringement of motion pictures" registered to plaintiff. (Id. ¶ 4.) Mr. Tarlow further states that upon receipt of Magistrate Judge Orenstein's December 16, 2009 R&R, "it was clear that my client's goals in this litigation of stopping infringement, would not be met, as there was not a recommendation for an injunction, nor was there a recommendation to hold the owner of European Music and Video Store liable for the acts of infringement." (Id. ¶ 6.) Mr. Tarlow further states that after speaking with his client about the R&R and his belief that the action could be dismissed "as of right" pursuant to Fed. R. Civ. P. 41(a)(1)(A), Mr. Poparic instructed Tarlow to dismiss the matter without prejudice. (Id. ¶¶ 6-7.) Mr. Tarlow further states that "the amount of the recommended recovery was not an issue in dismissing the case." (Id. ¶ 7.) Mr. Tarlow requests that plaintiff be permitted to voluntarily dismiss the action pursuant to Fed. R. Civ. P. 41(a)(1)(A) and, "[i]f the Court is not so inclined, Plaintiff respectfully requests that judgment be issued as per the R&R of December 16, 2009. Plaintiff does not wish to dismiss the matter with prejudice." (Id. ¶ 8.)

In response to the court's February 18, 2010 Order to Show Cause why Rule 11 sanctions should not be imposed, plaintiff's counsel submitted a declaration only on his behalf, and failed to submit his client's declaration, as ordered. (See Order to Show Cause at 3.) Mr. Poparic has failed to comply with the Show Cause Order and has not been relieved of his obligation to comply with the court order.*fn3

Mr. Tarlow requests that Rule 11 sanctions not be imposed upon him or Mr. Poparic for bringing common law claims pursuant to Connecticut law even though he concedes that no basis in fact or law existed for such claims. Specifically, Mr. Tarlow states that he and his client should not be sanctioned because he used "the form of a Complaint which [Tarlow] prepared for a potential copyright action which was to be filed in Connecticut." (See Tarlow Decl. ¶ 5.) Mr. Tarlow states that references to Connecticut "should have stated 'New York'." (Id. ¶ 11.) Mr. Tarlow acknowledges that he made "errors" in his pleadings of which he remained unaware until December 16, 2009, the date of Magistrate Judge Orenstein's R&R. (See id. ¶ 18.)

C. The December 16, 2009 R&R

In a thorough 18-page Report and Recommendation, discussed further below, Magistrate Judge Orenstein recommends, pursuant to 28 U.S.C. § 636(b)(1)(B)-(C), that plaintiff's motion for default judgment be granted and that plaintiff be awarded damages in the total amount of $12,530. (See R&R at 1.) As to liability, the R&R recommends that default judgment be granted on plaintiff's first cause of action for copyright infringement against defendant European only, and that the court dismiss all other causes of action, including plaintiff's Lanham Act claim for trademark infringement, unfair competition claims under Connecticut law, and all federal and state claims against individual defendant Anicic. (Id.) As to relief, the R&R recommends that plaintiff be awarded $10,000 in statutory damages, $2,000 in attorney's fees and $530 in costs, and that plaintiff's request for a permanent injunction be denied. (Id.) In so recommending, the R&R, inter alia, analyzes plaintiff's claims under the applicable legal standards and points out the significant pleading defects in the Complaint as related to plaintiff's claims against defendant Anicic, alleged liability under Connecticut common law and the Lanham Act, and request for a permanent injunction. (See R&R at 5-9, 13-14.)

D. The December 30, 2009 Supplemental R&R

As previously mentioned, the Supplemental R&R recommends that the court vacate plaintiff's Notice of Voluntary Dismissal and direct that plaintiff show cause why he should not be required to elect dismissal of the Complaint with prejudice or the entry of judgment on the basis of his pending motion for default judgment. (Suppl. R&R at 10.) The Supplemental R&R recognizes that Fed. R. Civ. P. 41(a)(1)(A)(i) permits a plaintiff to dismiss an action "before the opposing party serves either an answer nor a motion for summary judgment." (Id. at 6) (quoting Fed. R. Civ. P. 41(a)(1)(A)(i).) The Supplemental R&R reasons that notwithstanding the language of the rule and the fact that neither an answer or summary judgment motion have been filed, plaintiff's filing of a default judgment motion "had several implications, one of which was to serve as the functional equivalent of a motion for summary judgment by the defendants against whom Poparic sought relief." (Suppl. R&R at 6-7.) In so concluding, the Supplemental R&R reasons that plaintiff's default judgment motion "triggers exactly the same form of judicial review that would follow a defendant's motion for summary judgment - so long as the defendant is content to rest on the complaint's factual allegations as the evidentiary record." (Id. at 7.)

The Supplemental R&R further reasons that dismissal of plaintiff's Complaint without prejudice under the circumstances and procedural history of this case impairs the interests of judicial economy. (See id. at 5.) The Supplemental R&R points out that had this court decided the pending default judgment motion rather than referring it to a magistrate judge pursuant to 28 U.S.C. § 636(b), plaintiff would have had only one full and fair opportunity to litigate his claims. (See id. at 5.) Because the court referred plaintiff's motion for a report and recommendation, if plaintiff is permitted to withdraw his Complaint without prejudice, he would have the opportunity to "adapt his pleadings to the court's analysis, and try again." (Id. at 6.) The Supplemental R&R thus highlights a "dilemma" faced by district courts that refer default judgment motions to magistrate judges: "either forego some of the judicial efficiencies that Congress contemplated in creating the office of magistrate judge, or give some plaintiffs the unfair tactical advantage of having multiple opportunities to obtain the litigation results they prefer." (Id.)

E. Plaintiff's Objections

Plaintiff has objected to both the R&R and Supplemental R&R. (See Doc. No. 19.) Initially, plaintiff objects "to the fact that he is being compelled by the Supplemental Report and Recommendation . . . to respond to the Report and Recommendation, as Plaintiff dismissed the case, and the Court, as a matter of law, does not have jurisdiction to adjudicate the merits of the case any longer." (Id. at 5.) Citing no relevant legal authority, plaintiff further objects to the issuance of the Supplemental R&R ...


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