Sands v. Bauer Media Group USA, LLC

Background

Steve Sands brought this copyright-infringement action against Bauer Media Group USA, LLC. The opinion states that Sands was represented by attorney Richard Liebowitz. Bauer moved to dismiss the case based on alleged discovery abuse or, alternatively, sought security for costs and attorney’s fees under Local Civil Rule 54.2.

In a September 18, 2019 decision, the court found the discovery-abuse claim meritorious but declined to dismiss the action at that time. Instead, it required Liebowitz to pay a reasonable attorney’s fee for the sanctions motion and ordered Sands to explain why the court should not require a $50,000 bond or other security for costs and attorney’s fees.

On October 22, 2019, after considering and rejecting Sands’s arguments, the court ordered that the action would be dismissed with prejudice unless Sands posted the required security by October 29, 2019. Sands did not post a bond or other security. On October 29, he moved for recusal under 28 U.S.C. § 455, arguing that the court’s actions showed personal bias against Liebowitz and actual bias against Sands.

Recusal

The court rejected the recusal motion. It explained that judicial opinions formed from events in the current case or earlier proceedings ordinarily do not establish bias unless they show deep-seated favoritism or antagonism that would make fair judgment impossible. The court found that nothing in the record reached that level.

The court also addressed Sands’s assertion that an earlier ruling had called Liebowitz a “copyright troll” and accused him of filing lawsuits designed to obtain settlements through pressure from defense costs. The court stated that its earlier ruling had instead quoted or referred to characterizations and observations by other judges and had not itself made those statements as claimed by Sands.

The opinion further discussed statements by Liebowitz and Sands that no settlement demand had been made in the case. According to the opinion, the record included a $25,000 settlement demand made by Liebowitz’s associate and an email in which Liebowitz himself proposed settling for $25,000. The court found Liebowitz’s explanation that he had “overlooked” the demands unpersuasive. These matters were part of the court’s explanation for rejecting the recusal request; the court did not find the required favoritism or antagonism.

Failure to Post Security

The court stated that, because Sands had not posted the security required by the October 22 order, the action was dismissed. The dismissal was with prejudice, meaning the order barred refiling the action on the same claim under the court’s stated disposition.

Attorney’s Fees

Liebowitz sought an opportunity to make another filing about the amount of attorney’s fees to be awarded as a discovery sanction. The court found no reason to deny that opportunity.

Disposition

The court denied Sands’s recusal motion in all respects. It dismissed the action with prejudice for failure to post the security required by the October 22, 2019 order. It granted Sands’s motion for permission to file a further memorandum concerning the amount of attorney’s fees to the extent that Sands could file the memorandum by December 6, 2019, and the memorandum could not exceed 10 double-spaced pages.