United States District Court, S.D. New York
Richard P. Liebowitz For the plaintiff
Stephanie Furgang Adwar For the defendant
MEMORANDUM OPINION AND ORDER
COTE, District Judge:
October 18, 2017, Paul Steeger filed this copyright action.
He is represented by Richard Liebowitz, who has been labelled
a copyright “troll.” McDermott v. Monday
Monday, LLC, 17cv9230(DLC), 2018 WL 1033240, at *3 n.4
(S.D.N.Y. Feb. 22, 2018). The defendant is a “mom and
pop” office cleaning service. As became apparent over
the brief history of this litigation, the defendant had
downloaded a photograph of a leaf from a free download site.
It displayed that photograph on its website sometime in 2013.
The copyright for the photo was filed on March 11, 2017, well
after the allegedly infringing use. Similar photos of leaves
are available online for a license of about $12. The
defendant removed the photo from its website as soon as it
was notified, in July, that the plaintiff might file suit.
Memorandum Opinion and Order of January 26, 2018
(“January 26 Order”) required Mr. Liebowitz to
show cause by February 2 why he should not be sanctioned,
pursuant to Rule 11 and the Court's inherent power, for
the following conduct:
1) his failure to serve the November 9, 2017 Notice of
2) the misrepresentations and omissions in his January 13,
2018 letter to the Court; and 3) costs needlessly imposed on
January 26 Order outlined the procedural history of the case,
including Mr. Liebowitz's failure to serve the Notice of
Pretrial Conference on defendant, his delay in serving the
Complaint on the defendant, and his failure to communicate
with the defendant effectively concerning settlement.
February 2 response, Mr. Liebowitz acknowledges that he
failed to serve the Court's Notice of Pretrial Conference
on the defendant, as he was required to do. He contends that
the failure was “inadvertent, ” and argues that
the defendant was not prejudiced since it independently
learned of the date of the conference.
Liebowitz argues that his January 13 letter to the Court
contained no misrepresentations and that the law did not
impose upon him the duty to say more than he did. The January
13 letter had requested an adjournment of the initial
pretrial conference scheduled to occur on January 19, on the
ground that the defendant had not responded to the complaint
and the plaintiff intended to file a motion for a default.
That letter did not reveal that plaintiff's counsel had
been in communication with attorneys for the defendant since
July, as described in the January 26 Order. Mr. Liebowitz
argues that, in the event the Court finds that he should have
included more information in the January 13 letter, his
omissions did not rise to the level of bad faith.
Mr. Liebowitz argues that it was the defendant who needlessly
made the litigation more expensive by (among other things)
failing to waive service, to update its address with the
Secretary of State, and to answer or request an extension of
the time to answer.
February 5, counsel for the defendant requested that the
Court grant the defendant its costs and attorney's fees,
and impose a bond requirement on the plaintiff to cover the
defendant's costs or dismiss this action. Among other
things, the submission took issue with the accuracy of
several representations in Mr. Liebowitz's February 2
submission. The plaintiff was required to respond by February
12. In an application of February 6, the defendant retracted
its February 5 requests in order to proceed with a settlement
agreement reached between the plaintiff and defendant.
February 12 submission, Mr. Liebowitz argued again that there
was insufficient evidence that he acted in bad faith. On
February 22, the plaintiff voluntarily dismissed this action
with prejudice pursuant to Rule 41(a)(1)(A)(i).
not the first time Mr. Liebowitz has failed to serve a Notice
of a Pretrial Conference on a defendant. Although not
disclosed by Mr. Liebowitz, defendant informed the Court that
Mr. Liebowitz failed to serve a similar notice of pretrial
conference in a case before The Honorable Ronnie Abrams.
See Al Pereira v. Kendall Jenner, Inc.,
17cv6945(RA). On November 28, 2017, two days before the
conference was scheduled, the defendant in that case wrote to
Judge Abrams to request to attend by telephone, as it had
only learned of the conference that day. The ...