Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Elsevier Inc. v. Grossman

United States District Court, S.D. New York

November 3, 2017

ELSEVIER INC., ELSEVIER B.V., ELSEVIER LTD., and ELSEVIER MASSON SAS, Plaintiffs,
v.
PIERRE GROSSMANN, IBIS CORP., PUBLICAÇÕES TÉCNICAS INTERNACIONAIS, and JOHN DOE Nos. 1-50, Defendants.,

          OPINION AND ORDER

          KATHERINE POLK FAILLA, District Judge

         Pending before the Court is a motion for summary judgment filed by Plaintiffs Elsevier Inc., Elsevier B.V., Elsevier LTD., and Elsevier Masson SAS (collectively, “Elsevier”). The motion seeks judgment as a matter of law as to a single element of a claim Elsevier pursued at trial - an element that, due to an intervening change in law during the pendency of the parties' post-trial motions, Elsevier failed to prove at trial. As discussed below, Defendant Pierre Grossmann (“Grossmann”) has not filed any opposition. For the reasons that follow, the Court grants Elsevier's motion.[1]

         BACKGROUND

         A. Elsevier's Complaint and the Ensuing Trial

         The following section discusses the underlying facts in this case only to the extent necessary to dispose of the instant motion, as the Court has previously engaged in factual recitations at some length. See Elsevier Inc. v. Grossmann, No. 12 Civ. 5121 (KPF), 2017 WL 3393848, at *1-2 (S.D.N.Y. Aug. 7, 2017); Elsevier, Inc. v. Grossman, 199 F.Supp.3d 768, 773-78 (S.D.N.Y. 2016), order clarified sub nom. Elsevier Inc. v. Pierre Grossmann, IBIS Corp., No. 12 Civ. 5121 (KPF), 2016 WL 7077037 (S.D.N.Y. Dec. 2, 2016); Elsevier, Inc. v. Grossman, 77 F.Supp.3d 331, 337-41 (S.D.N.Y. 2015). In brief, Elsevier brought this action to recover for sales of academic journals to Defendants - a Brazilian subscription agency, its related U.S.-facing company, and the principal of both - at discounted rates based on Defendants' representations that they were buying the journals for “valid personal use.” Elsevier, Inc., 199 F.Supp.3d at 774. As it turned out, the subscription agency purchased the journals on behalf of institutions that would have otherwise paid significantly higher prices. See id.

         After defense counsel withdrew from the case, Elsevier obtained default judgments against the corporate defendants, and Grossmann, proceeding pro se, became the lone defendant to proceed to trial on January 11, 2016. See Elsevier, Inc., 199 F.Supp.3d at 775-76.[2] Elsevier's evidence at trial proved that Grossmann, through his subscription agency Publicações Técnicas Internacionais, fraudulently obtained subscriptions to Elsevier's journals and resold them to Brazilian institutions. See Id. at 776. The jury thus awarded a verdict to Elsevier, finding Grossmann liable for violating the Racketeer Influenced and Corrupt Organizations Act (“RICO”), breach of contract, and conversion. See id.

         B. Post-Trial Motion Practice

         Elsevier and Grossmann then participated in extensive post-trial motion practice. Of relevance here, Elsevier moved under Federal Rule of Civil Procedure 50(b) for judgment as a matter of law or, alternatively, for a new trial under Federal Rule of Civil Procedure 59(a) on the amount of RICO damages the jury awarded. (Dkt. #185). For his part, Grossmann moved for judgment as a matter of law as to the RICO claim on the basis that, inter alia, the claim was an improper extraterritorial application of RICO. (Dkt. #194, at 5-6). Auspiciously for Grossmann, during the pendency of the post-trial motions, the Supreme Court decided RJR Nabisco, Inc. v. European Community, holding that “[a] private RICO plaintiff must … allege and prove a domestic injury to its business or property” to prevail. - U.S. -, 136 S.Ct. 2090, 2106 (2016) (emphasis removed).

         After supplemental briefing, the Court held that the trial evidence had not established a domestic injury to Elsevier, nor had Elsevier pled any domestic injury in its complaint. See Elsevier, Inc., 199 F.Supp.3d at 787-90. In doing so, the Court considered two potential grounds for finding a domestic injury based on Elsevier's trial evidence: (i) a competitive injury to Elsevier's business and (ii) an injury in the form of Elsevier selling its property under false pretenses. See Id. at 787-88. Yet evidence of ties to the United States under either theory was lacking. Any competitive injury occurred only in Brazil, where Defendants resold the journals, and even if Elsevier had parted with the journals under false pretenses, the evidence did not show that Elsevier had done so in the United States. See Id. at 787-90.

         The Court thus granted Grossmann's motion for judgment as a matter of law as to the RICO claim. See Elsevier, Inc., 199 F.Supp.3d at 796. But considering the intervening change in law under RJR Nabisco and the interplay between Federal Rules of Civil Procedure 59 and 15, the Court allowed Elsevier to file a renewed motion for a new trial and a motion to amend the pleadings to conform to any new evidence, provided that Elsevier proffer the evidence that it would offer at trial on the issue of domestic injury. Id. at 790-92. The Court also advised Elsevier that evidence supporting a theory of domestic injury in the form of selling the journals under false pretenses should show that Elsevier relinquished control of the journals in the United States by shipping them from the States or through its domestic employees' shipment authorizations. See Id. at 790.

         Thus, on February 15, 2017, Elsevier moved for a new trial and to amend its complaint. (Dkt. #297). As the Court reviews more fully below, Elsevier proffered the declaration of Elsevier employee Maribel Burgos, along with supporting exhibits, in which she testified that “48 of the 51 fraudulent subscriptions” involved in the case “were either physically shipped from the United States or were authorized for shipment by an Elsevier employee located in the United States.” (Dkt. #298, ¶ 6). Elsevier also submitted a proposed amended complaint. (Dkt. #299, Ex. 1). Finding Elsevier's proffer sufficient to warrant a new trial and good cause for amendment, the Court granted Plaintiff's motions. See Elsevier Inc. v. Grossmann, No. 12 Civ. 5121 (KPF), 2017 WL 1843298, at *10 (S.D.N.Y. May 8, 2017). Accordingly, on September 15, 2017, Elsevier moved for summary judgment on the issue of domestic injury. (See Dkt. #384-87).

         C. Grossmann's Sanctions

         A related consideration, with which the parties are well acquainted, is worth mentioning. Over the course of this litigation, Grossmann has engaged in - and received sanctions for - what the Court has previously characterized as “shockingly inappropriate, harassing conduct.” Elsevier Inc., 2017 WL 3393848, at *2. At this juncture, the Court need not delve into the details of Grossmann's behavior, save to say that one such sanction was the Court barring him from introducing any evidence on the issue of domestic injury. See Id. at *5. For this reason, Elsevier's motion for summary judgment is unopposed. In addition, since the Court ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.