16 Casa Duse, LLC v. Merkin

Background

The Second Circuit had previously vacated the court’s denial of Casa Duse’s renewed motion for attorney’s fees and costs under section 505 of the Copyright Act and for sanctions under 28 U.S.C. § 1927. After the case was sent back, the district court issued a June 2020 order denying Casa Duse’s renewed request for attorney’s fees and costs. Casa Duse then moved for reconsideration under Local Civil Rule 6.3.

Although Casa Duse filed the motion after the rule’s fourteen-day deadline, the court considered it on the merits. Reconsideration generally requires the moving party to identify controlling decisions or information the court overlooked, or to show a clear error or injustice. It cannot be used to present new arguments or retry issues already decided.

Arguments and analysis

Casa Duse first argued that the June 2020 order incorrectly stated that it had a judgment against the corporate defendant. The court agreed that no such judgment existed. It therefore vacated the June 2020 order and stated that it would issue an amended order removing that reference. The court nevertheless found that the error had not affected its decision to deny fees and declined to reconsider the denial of fees and costs. It reaffirmed that an award of costs was not warranted.

Casa Duse also argued that the court had failed to account for Alex Merkin’s alleged motivations and litigation conduct, including his asserted belief in moral rights, his later copyright theory, and his efforts to obtain advisory rulings. The court concluded that these matters were not new information that it had overlooked. It stated that it had repeatedly considered Merkin’s motivations and actions and had determined, in light of the Second Circuit’s guidance about the reasonableness of his litigation positions, that they did not justify an award of fees and costs.

Casa Duse further argued that the court had misapplied the governing fee-award standards, including the Supreme Court’s decision in Kirtsaeng and the compensation-and-deterrence factor identified in Fogerty. The court rejected that argument, explaining that it had not decided that Kirtsaeng eliminated all relevant Second Circuit precedent. Instead, it had considered Kirtsaeng and the cases discussed there as guidance and had declined to award fees based on the facts of this case.

Disposition

The court ordered that Casa Duse’s motion for reconsideration was granted in part and denied in part. It vacated the June 2020 order and directed that an amended decision remove the reference to a judgment against the corporate defendant. It did not reconsider the denial of fees and costs and reaffirmed that an award of costs was not warranted. Judge Richard J. Sullivan, sitting by designation as a United States Circuit Judge, directed the Clerk to terminate the motion at docket entry 157.

Classification

This is a procedural order because it decides a motion for reconsideration of an earlier fee ruling rather than deciding the underlying copyright dispute.