Predator International, Inc. v. Gamo Outdoor USA, Inc.

Filing 308

ORDER granting Defendant's Motion to Clarify 293 . Upon entry of final judgment in this case, judgment shall enter in favor of Gamo USA and against Predator on Predators copyright claim to the extent it seeks statutory damages and attorneys fees. It is further ORDERED that, on or before Monday, June 11, 2012, Predator shall show cause why its copyright claim should not be dismissed as moot. By Judge Philip A. Brimmer on 6/5/12.(pabcd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 09-cv-00970-PAB-KMT
PREDATOR INTERNATIONAL, INC., a Colorado corporation,
Plaintiff,
v.
GAMO OUTDOOR USA, INC., a Florida corporation,
Defendant.

ORDER

This matter is before the Court on the motion for clarification [Docket No. 293]
filed by defendant Gamo Outdoor USA, Inc. (“Gamo USA”).
On March 26, 2012, the Court granted in part and denied in part [Docket No.
289] Gamo USA’s motion for summary judgment [Docket No. 182]. The Court ordered
that, upon entry of final judgment in this case, judgment shall enter in favor of Gamo
USA and against plaintiff Predator International, Inc. (“Predator”) on Predator’s claim for
trade dress infringement and state law claims for unjust enrichment and unfair
competition. The Court, however, concluded that Predator had identified evidence
sufficient to survive summary judgment on its copyright claim. In the present motion,
rather than seeking clarification, Gamo USA requests judgment on its argument that
Predator has identified no damages that it could recover on its copyright claim, an issue
raised in the motion for summary judgment that was left unaddressed by the Court’s
March 26, 2012 order. Therefore, the Court construes the motion as a motion for

reconsideration.
The Federal Rules of Civil Procedure do not specifically provide for motions for
reconsideration, see Hatfield v. Bd. of County Comm’rs for Converse County, 52 F.3d
858, 861 (10th Cir. 1995), and, where, as here, a party files a motion for
reconsideration prior to the entry of judgment, Rules 59(e) and 60(b) do not apply. See
Houston Fearless Corp. v. Teter, 313 F.2d 91, 92 (10th Cir.1962). Instead, the motion
falls within a court’s plenary power to revisit and amend interlocutory orders as justice
requires. See Paramount Pictures Corp. v. Thompson Theatres, Inc., 621 F.2d 1088,
1090 (10th Cir. 1980) (citing Fed. R. Civ. P. 54(b)); see also Houston Fearless Corp.,
313 F.2d at 92. However, in order to avoid the inefficiency which would attend the
repeated re-adjudication of interlocutory orders, judges in this district have imposed
limits on their broad discretion to revisit interlocutory orders. See, e.g., Montano v.
Chao, No. 07-cv-00735-EWN-KMT, 2008 WL 4427087, at *5-6 (D. Colo. Sept. 28,
2008) (applying Rule 60(b) analysis to the reconsideration of interlocutory order); United
Fire & Cas. Co. v. McCrerey & Roberts Constr. Co., No. 06-cv-00037-WYD-CBS, 2007
WL 1306484, at*1–2 (D. Colo. May 3, 2007) (applying Rule 59(e) standard to the
reconsideration of the Duty-to-Defend Order); M.M. v. Zavaras, 939 F.Supp. 799, 801
(D. Colo. 1996) (applying law of the case doctrine to motion for reconsideration of
interlocutory order).
With that said, however, Gamo USA’s motion is based on the premise that
resolution of the damages issue will serve efficiency by eliminating an undisputed issue
from the case. In its motion for summary judgment and the present motion, Gamo USA

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contends, and Predator does not dispute, that Predator is barred from recovering
statutory damages or attorney’s fees on its copyright claim. Therefore, the Court
identifies no reason to deny summary judgment to Gamo USA on Predator’s copyright
claim to the extent Predator seeks statutory damages and attorney’s fees.
Furthermore, this issue raises the question of whether plaintiff’s copyright claim
is now moot. A federal court must satisfy itself as to its own jurisdiction, even if doing
so requires sua sponte action. Citizens Concerned for Separation of Church & State v.
City & County of Denver, 628 F.2d 1289, 1297, 1301 (10th Cir. 1980). When a plaintiff
succeeds on a copyright claim, it has the option of choosing between actual damages
or statutory damages. See 17 U.S.C. § 504(a); cf. Eagle Services Corp. v. H20
Industrial Services, Inc., 532 F.3d 620, 623 (7th Cir. 2008) (noting that there is no right
to nominal damages in a copyright case); Sparaco v. Lawler, Matusky, Skelly Engineers
LLP, 313 F. Supp. 2d 247, 253 (S.D.N.Y. 2004) (commenting that a plaintiff “seeks
statutory damages for the copyright violation in the same way that a plaintiff who cannot
prove damages for a tort or breach of contract claims nominal damages”). It is not clear
whether, in the absence of statutory damages and attorney’s fees, Predator has
evidence of actual losses that would provide the Court with a basis to award relief if
Predator were to prevail on its copyright claim. See Docket No. 214 at 20 (“Predator
further fails to establish any evidence of damages resulting from the alleged copyright
infringement. Once alerted of similarities between the RED FIRE description on
Gamo’s website and the POLYMAG description on Predator’s website, Gamo removed

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the alleged infringing material from its website within a few weeks.”).1 Consequently,
the Court cannot determine that “‘granting a present determination of the issues offered
will have some effect in the real world.’” Wyoming v. U.S. Dep’t of Agric., 414 F.3d
1207, 1212 (10th Cir. 2005) (quoting Citizens for Responsible Gov’t State Political
Action Comm. v. Davidson, 236 F.3d 1174, 1182 (10th Cir. 2000)).
For the foregoing reasons, it is
ORDERED that Gamo USA’s motion for clarification [Docket No. 293] is
GRANTED and, upon entry of final judgment in this case, judgment shall enter in favor
of Gamo USA and against Predator on Predator’s copyright claim to the extent it seeks
statutory damages and attorney’s fees. It is further
ORDERED that, on or before Monday, June 11, 2012, Predator shall show
cause why its copyright claim should not be dismissed as moot.

DATED June 5, 2012.
BY THE COURT:

s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge

1

See Harolds Stores, Inc. v. Dillard Dept. Stores, Inc., 82 F.3d 1533, 1555 (10th
Cir. 1996) (“When there is no probability or threat of continuing infringements, injunctive
relief is ordinarily inappropriate.”).
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