Macmillan Publishing Group, LLC v. Thi Diep
- Vernon Broderick
- 1:22-cv-00839
- U.S. District Court · Southern District of New York
- 4
Macmillan v. Dinh Thi Diep: Judge Moses scheduled a damages inquest after default and a permanent copyright injunction.
Macmillan Publishing Group, LLC must submit evidence and proposed findings about damages and serve them on Dinh Thi Diep, who may respond; the order also governs any request for attorneys’ fees and any damages hearing.
What happened
In Macmillan Publishing Group, LLC v. Dinh Thi Diep, the court had already entered a default against Dinh Thi Diep and issued a permanent injunction barring direct or indirect infringement of copyrights owned or exclusively licensed by Macmillan.
The order set procedures for deciding Macmillan’s damages and other monetary relief. Macmillan had to submit proposed factual findings, legal conclusions, supporting evidence, and any fee request by May 12, 2023. Dinh Thi Diep could respond by June 12, 2023, and the court said it might decide the damages issue from written submissions without a hearing.
Judge Barbara Moses issued the scheduling order and required Macmillan to serve the filings on Dinh Thi Diep. The order did not determine the amount of damages or other monetary relief.
The detailed version
- Macmillan Publishing Group, LLC v. Thi Diep · No. 1:22-cv-00839
- Vernon Broderick
- Apr. 13, 2023
Background
The Clerk of Court had entered a certificate of default against Dinh Thi Diep. After Dinh Thi Diep did not appear at a rescheduled telephone hearing, the district judge entered a default in Macmillan’s favor and issued a permanent injunction prohibiting direct or indirect infringement of copyrights owned or exclusively licensed by Macmillan. The district judge then referred the case to Magistrate Judge Barbara Moses to conduct a damages inquest and issue a report and recommendation about Macmillan’s damages.
Order
Judge Moses ordered Macmillan to file proposed findings of fact and conclusions of law concerning all damages and other monetary relief by May 12, 2023. The filing had to state the exact amount sought and explain how the amount was calculated and tied to each legal claim. If Macmillan sought actual damages, it had to provide admissible supporting evidence, such as declarations or affidavits and authenticated documents. The order also required proof supporting any request for attorneys’ fees, including contemporaneous time records, attorney information, rates, hours, work performed, costs, and expenses.
The order required Macmillan to serve its filing and supporting materials on Dinh Thi Diep by mail and file proof of service. Dinh Thi Diep could serve and file responses by June 12, 2023. The court stated that it might conduct the damages inquest based only on written submissions. A party seeking an evidentiary hearing had to explain why written submissions were insufficient and identify the proposed witnesses and evidence.
Effect of the Order
This was a scheduling and procedure order for determining damages after the default and permanent injunction. It did not set the amount of damages, award attorneys’ fees, or make a final determination about other monetary relief. It also required Macmillan’s proposed legal conclusions to show that the complaint’s well-pleaded allegations were sufficient to establish liability for each asserted claim, even though those allegations were treated as true after the default.
Read the full 4-page opinion on CourtListener, the free public archive maintained by the Free Law Project.