Erickson Productions Inc v. Kraig R Kast

Background

The plaintiffs, Erickson Productions, Inc. and Jim Erickson, moved under Civil Local Rule 7-9(b) for permission to file a motion asking the court to reconsider its July 13, 2023 order. That earlier order referred Defendant Kraig Kast to the Federal Pro Bono Project and stayed the case until four weeks after a lawyer was appointed to represent him.

The case had been remanded by the Ninth Circuit after it reversed this court’s February 12, 2021 judgment awarding Erickson $450,000 in statutory damages for Kast’s willful copyright infringement. The remand called for a jury trial on willfulness and statutory damages. Kast later requested appointment of pro bono counsel, and the Federal Pro Bono Project reported that he was eligible for placement with such representation.

Parties’ Arguments

Erickson argued that reconsideration was warranted because the court had failed to consider relevant facts. Erickson said the plaintiffs had not received information about the project’s determination that Kast was eligible for representation and argued that the determination conflicted with a July 2019 order denying Kast’s request for appointed counsel. Erickson also asserted that the court appeared to have relied entirely on the project’s assessment, questioned whether the court could defer that determination to the project, and alleged that Kast likely misrepresented his financial status.

Civil Local Rule 7-9 permits a party to seek permission to file a reconsideration motion based on specified grounds, including a material difference in facts or law, newly emerged material facts or a change in law, or a manifest failure to consider material facts or dispositive legal arguments previously presented. Reconsideration is an extraordinary remedy, and a party may not simply repeat arguments already made.

Court’s Analysis

The court explained that General Order 25 sets four eligibility criteria for pro bono counsel through the Federal Pro Bono Project: the litigant must be unrepresented, lack the financial resources to hire counsel, have made reasonable efforts to obtain private counsel or shown that such efforts would be futile, and have a case that the referring judge determines merits pro bono representation. The last criterion concerns whether the claims and issues warrant an attorney’s assistance, not whether the litigant is likely to win.

The court had consulted with the Federal Pro Bono Project, which confirmed that it had assessed Kast under the first three criteria and believed he qualified under the fourth. The court also found that representation would be useful in the proceedings after remand, consistent with the Ninth Circuit’s earlier determination that appointing pro bono counsel would benefit the court’s review on appeal. The court stated that financial resources were only one eligibility factor and that Erickson had offered no material facts calling the project’s assessment into question.

The court rejected Erickson’s reliance on Federal Rule of Civil Procedure 60(b), explaining that Rule 60(b) applies to final judgments, orders, or proceedings, while the July 13 order was interlocutory. Civil Local Rule 7-9 supplied the applicable procedure for seeking reconsideration of that order.

Disposition

The court denied Erickson’s motion for leave to file a motion for reconsideration. The opinion did not decide the underlying copyright issues or the amount of any statutory damages on remand.