Dr. Seuss Enterprises, L.P. v. ComicMix LLC et al

Filing 163

ORDER (1) Granting Joint Motion for an extension of time NUNC PRO TUNC for Defendants to file their motion for Attorney's fees; (2) Granting Plaintiff's ex parte application for an order denying Defendants' motion for Attorney's F ees and Bill of Costs without prejudice or, in the alternative, staying proceedings pending appeal; and (3) Denying motion for Attorney's fees and Bill of Costs(ECF No.s 154 , 155 , 157 , 158 ). Signed by Judge Janis L. Sammartino on 4/30/2019. (jpp)

Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 DR. SEUSS ENTERPRISES, L.P., a California limited partnership 13 Case No.: 16-CV-2779 JLS (BGS) ORDER (1) GRANTING JOINT MOTION FOR AN EXTENSION OF TIME NUNC PRO TUNC FOR DEFENDANTS TO FILE THEIR MOTION FOR ATTORNEYS’ FEES; (2) GRANTING PLAINTIFF’S EX PARTE APPLICATION FOR AN ORDER DENYING DEFENDANTS’ MOTION FOR ATTORNEY’S FEES AND BILL OF COSTS WITHOUT PREJUDICE OR, IN THE ALTERNATIVE, STAYING PROCEEDINGS PENDING APPEAL; AND (3) DENYING WITHOUT PREJUDICE DEFENDANTS’ MOTION FOR ATTORNEY’S FEES AND BILL OF COSTS Plaintiff, 14 v. 15 COMICMIX LLC, a Connecticut limited liability company; GLENN HAUMAN, an individual; DAVID JERROLD FRIEDMAN a/k/a DAVID GERROLD, and individual; and TY TEMPLETON, an individual, 16 17 18 19 20 Defendants. 21 22 23 24 (ECF Nos. 154, 155, 157, 158) 25 Presently before the Court are Plaintiff Dr. Seuss Enterprises, L.P.’s Ex Parte 26 Application for an Order Denying Defendants’ Motion for Attorney’s Fees and Bill of 27 Costs Without Prejudice or, in the Alternative, Staying Proceedings Pending Appeal (“Ex 28 Parte App.,” ECF No. 157) and Plaintiff’s and Defendants ComicMix LLC, Glenn 1 16-CV-2779 JLS (BGS) 1 Hauman, David Jerrold Friedman a/k/a David Gerrold, and Ty Templeton’s Joint Motion 2 for an Extension of Time Nunc pro Tunc for Defendants to File Their Motion for Attorneys’ 3 Fees (“Joint Mot.,” ECF No. 158). Also before the Court are Defendants’ Opposition to 4 (“Ex Parte Opp’n,” ECF No. 159) and Plaintiff’s Reply in Support of (“Ex Parte Reply,” 5 ECF No. 160) the Ex Parte Application, as well as Defendants’ Bill of Costs (ECF No. 6 154) and Motion for Attorney’s Fees (“Fee Mot.,” ECF No. 155). 7 JOINT MOTION 8 In the Joint Motion, the Parties indicate that they have stipulated to extend the 9 deadline for Defendants to file their Fee Motion from April 9, 2019, to April 10, 2019, see 10 Joint Mot. at 1–2, due to technical difficulties faced by Defendants’ counsel. See Decl. of 11 Dan Booth in Support of Joint Mot., ECF No. 158-1, ¶¶ 7–8. Counsel for Plaintiff has 12 stipulated to the timeliness of Defendants’ Fee Motion. See id. ¶ 9. Good cause appearing, 13 the Court GRANTS the Joint Motion (ECF No. 158) and EXTENDS NUNC PRO TUNC 14 the deadline for Defendants to file their Fee Motion to April 10, 2019. 15 EX PARTE APPLICATION 16 In its Ex Parte Application, Plaintiff requests that the Court denying without 17 prejudice Defendants’ pending Fee Motion and Bill of Costs or, alternatively, stay these 18 proceedings pending resolution of Plaintiff’s appeal. See generally Ex Parte App. Plaintiff 19 contends that, “[u]nder the Federal Rules of Civil Procedure, a district court may deny 20 without prejudice, or defer ruling on, a request for attorneys’ fees and costs until a pending 21 appeal has been decided.” Id. at 1–2 (citing Comments to Fed. R. Civ. P. 54 (1993 22 amendments); Fed. R. Civ. P. 58 advisory committee’s note to 1993 amendment). Plaintiff 23 urges that “[c]ourts in the Ninth Circuit, including this District, routinely find it appropriate 24 to deny without prejudice such motions in circumstances substantially identical to those 25 present here,” id. at 2 (citing FlowRider Surf, Ltd. v. Pac. Surf Designs, Inc., No. 3:15-cv- 26 01879-BEN-BLM, 2018 WL 6830611, at *3 (S.D. Cal. Dec. 21, 2018); Pacing Techs., 27 LLC v. Garmin Int’l, Inc., No. 12-CV-1067-BEN JLB, 2014 WL 2872219, at *2 (S.D. Cal. 28 June 24, 2014); Sovereign Gen. Ins. Servs., Inc. v. Scottsdale Ins. Co., No. 2:05-cv-003892 16-CV-2779 JLS (BGS) 1 MCE-DAD, 2008 WL 5381813, at *1 (E.D. Cal. Dec. 23, 2008); Flores v. Emerich & Fike, 2 No. 1:05-CV-0291 OWW DLB, 2007 WL 963282, at *7 (E.D. Cal. Mar. 29, 2007); Lasic 3 v. Moreno, No. 2:05-CV-0161-MCE-DAD, 2007 WL 4180655, at *1 (E.D. Cal. Nov. 21, 4 2007); G.P.P., Inc. v. Guardian Prot. Prod., Inc., No. 1:15-CV-00321-SKO, 2018 WL 5 932087, at *3 (E.D. Cal. Feb. 16, 2018); Dufour v. Allen, Case No. 2:14-cv-5616 CAS 6 (SSx), 2015 WL 12819170, at *2 (C.D. Cal. Jan. 26, 2015)), where “the Ninth Circuit’s 7 decision could have a direct impact on this Court’s determination as to whether an award 8 of attorney’s fees and costs [to Defendants as the prevailing parties] is appropriate,” id. at 9 3, especially as to whether Plaintiff’s decision to pursue the action against Defendants was 10 reasonable or not. See id. at 3–4. 11 Defendants, on the other hand, argue that “[i]t will . . . conserve judicial resources 12 to address the Fee Motion and Bill of Costs when the case has just ended and the issues 13 raised are fresh in the Court’s mind.” Ex Parte Opp’n at 4. Relying on Reinicke v. Creative 14 Empire LLC, No. 12-cv-01405-GPC, 2014 WL 5390176 (S.D. Cal. Oct. 22, 2014), and 15 Johnson v. Storix, Inc., 2017 WL 2779265, *3 (S.D. Cal. June 27, 2017), among other 16 cases, Defendants contend that, “[o]n that basis, courts in this Circuit routinely exercise 17 their discretion to promptly determine the fees and costs due while appeal is pending, and 18 decline similar requests to defer.” Id. at 5. Further, “[Plaintiff]’s argument, that the Ninth 19 Circuit’s view of reasonableness of the merits appeal may affect this Court’s disposition 20 on fees and costs, is basically unfounded,” id. at 8, and “[t]his Court need not await the 21 Ninth Circuit’s opinion to assess whether [Plaintiff] reasonably spent two and a half years 22 litigating allegations of market harm it could not support.” Id. at 9. Finally, Defendants 23 contend that “[a] prompt decision would let the Ninth Circuit consolidate the pending 24 appeal from the merits with any appeal from this Court’s decisions on fees and costs,” 25 which “would serve the judicial interest in avoiding piecemeal appeals.” Id. at 10. 26 Upon full consideration of the Parties’ briefs and the law, the Court determines in 27 its discretion that the Ninth Circuit’s decision could have an impact on this Court’s 28 determination of whether attorneys’ fees and costs are merited under 17 U.S.C. § 505 and 3 16-CV-2779 JLS (BGS) 1 15 U.S.C. § 1117(a). See Fed. R. Civ. P. 58 advisory committee’s note to 1993 amendment; 2 see also FlowRider Surf, Ltd., 2018 WL 6830611, at *3; Pacing Techs., LLC, 2014 WL 3 2872219, at *2. The Court therefore GRANTS the Ex Parte Motion (ECF No. 157) and 4 DENIES WITHOUT PREJUDICE Defendants’ Fee Motion (ECF No. 155) and Bill of 5 Costs (ECF No. 154). The Court GRANTS Defendants leave to renew their Fee Motion 6 and Bill of Costs within fourteen (14) days of the Ninth Circuit’s resolution of Plaintiff’s 7 appeal. 8 IT IS SO ORDERED. 9 10 Dated: April 30, 2019 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 16-CV-2779 JLS (BGS)

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?