AMERICAN EDUCATIONAL RESEARCH ASSOCIATION, INC. et al v. PUBLIC.RESOURCE.ORG, INC.

Filing 119

MOTION to ClarifyOrder [Dkt No 118] and, in Alternative, for Continuance by AMERICAN EDUCATIONAL RESEARCH ASSOCIATION, INC., AMERICAN PSYCHOLOGICAL ASSOCIATION, INC., NATIONAL COUNCIL ON MEASUREMENT IN EDUCATION, INC. (Attachments: # 1 Exhibit A, # 2 Text of Proposed Order, # 3 Certificate of Service)(Hudis, Jonathan)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
AMERICAN EDUCATIONAL RESEARCH
ASSOCIATION, INC., AMERICAN
PSYCHOLOGICAL ASSOCIATION, INC.,
and NATIONAL COUNCIL ON
MEASUREMENT IN EDUCATION, INC.,
Plaintiffs/Counterclaim-Defendants,
v.
PUBLIC.RESOURCE.ORG, INC.,
Defendant/Counterclaim-Plaintiff.

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Civil Action No. 1:14-cv-00857-TSC-DAR
PLAINTIFFS’ MOTION FOR
CLARIFICATION OF THE COURT’S
ORDER DATED FEBRUARY 2, 2017
AND, IN THE ALTERNATIVE,
CONSENT MOTION FOR
CONTINUANCE OF DEADLINES
FOR A MOTION FOR ATTORNEYS’
FEES AND BILL OF
COSTS, WITH STATEMENT OF
POINTS AND AUTHORITIES

Plaintiffs, American Educational Research Association, Inc. (“AERA”), American
Psychological Association, Inc. (“APA”) and National Council on Measurement in Education,
Inc. (“NCME”) (collectively, “Plaintiffs”) move herein for Clarification of the Court’s Order
Dated February 2, 2017 (the “Order” - Dkt. No. 118) and, in the alternative, for Continuance of
the Deadlines for File a Motion for Attorney’s Fees and a Bill of Costs. Counsel for the parties
have met and conferred pursuant to Local Rule 7(m), and counsel for Defendant has consented to
the enlargement of time as requested herein.
STATEMENT OF POINTS AND AUTHORITIES
Plaintiffs seek clarification as to whether the Order triggered the deadlines under Federal
Rule of Civil Procedure 54(d) for filing motions for fees and costs, and, if so, to request a
continuance of the deadlines until the matter has been fully and finally resolved and a final
judgment has been entered by the Court. The potential deadlines for the motion for fees and
costs are February 16 and February 23, respectively. In support of this Motion, Plaintiffs state as
follows:

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1.

On February 2, 2017, this Court entered the Order granting in part and denying in

part Plaintiffs’ Motion for Summary Judgment. Specifically, the Court directed that:
It is hereby ORDERED that Defendant is permanently enjoined from
all unauthorized use, including through reproduction, display,
distribution, or creation of derivative works, of the Standards for
Educational and Psychological Testing, 1999 edition.
Defendant is FURTHER ORDERED to remove all versions of this
standard from its website and any other website within its possession,
custody, or control within five days. [Dkt. 118]

2.

The Copyright Act permits a party to seek recovery of costs and reasonable

attorneys’ fees if it prevails in an action under the Copyright Act. See 17 U.S.C. §505 (“[T]he
court in its discretion may allow the recovery of full costs by or against any party other than the
United States or an officer thereof. Except as otherwise provided by this title, the court may also
award a reasonable attorney’s fee to the prevailing party as part of the costs.”).
3.

Because Plaintiffs prevailed on summary judgment on Count 1, their claim of

direct copyright infringement, and obtained a permanent injunction against Defendant for
unauthorized use of Plaintiffs’ copyrighted work, Plaintiffs would be permitted, pursuant to the
Copyright Act, to seek their reasonable attorneys’ fees and costs as to Count 1.
4.

However, the Order only granted in part Plaintiffs’ Motion for Summary

Judgment and did not dispose of all claims in this action, leaving open Count 2 (contributory
infringement) and Defendant’s Counterclaim. See Fed. R. Civ. P. 54(b) (“When an action
presents more than one claim for relief . . . , the court may direct entry of a final judgment as to
one or more, but fewer than all, claims . . . only if the court expressly determines that there is no
just reason for delay.

Otherwise any order or other decision, however designated, that

adjudicates fewer than all claims . . . . does not end the litigation as to any of the claims . . .
and may be revised at any time before the entry of a judgment adjudicating all claims . . . .”).
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(emphasis added).
5.

Rule 54(b) counsels that filing a motion for attorneys’ fees and bill of costs on an

order partially granting a motion for summary judgment is premature. However, a “judgment” is
defined in Fed. R. Civ. P. 54(a) as “a decree and any order from which an appeal lies.”
(emphasis added). Pursuant to 28 U.S.C. § 1292(a)(1), an interlocutory order may be appealed
from where it involves the “granting, continuing, modifying, refusing or dissolving injunctions,
or refusing to dissolve or modify injunctions.” See 28 U.S.C. § 1292(a)(1) (“[T]he courts of
appeals shall have jurisdiction of appeals from . . . interlocutory orders of the district courts of
the United States . . . or of the judges thereof, granting, continuing, modifying, refusing or
dissolving injunctions, or refusing to dissolve or modify injunctions . . . .”).
6.

In granting an injunction, the Order in this case could under one lens be viewed to

meet the definitional requirement of a “judgment” under Fed. R. Civ. P. 54(a), triggering the
various deadlines outlined in Fed. R. Civ. P. 54(d) to file a motion for attorneys’ fees and bill of
costs.
7.

However, because the Order decided fewer than all claims and did not constitute a

final judgment, thereby making Rule 54(d) relief premature until a final judgment is entered by
the Court, Plaintiffs request confirmation from the Court that the Order is not a “judgment” that
triggers the Rule 54(d) deadlines.

Otherwise, Plaintiffs’ motion for fees and bill of costs

encourage piecemeal litigation, given that claims in the case remain outstanding, and would
require the breaking out of time and costs spend on a single count within the Complaint.
8.

Should the Court determine that the Order is a “judgment” as defined under Fed.

R. Civ. P. 54(a) upon which Plaintiffs may file a motion for attorneys’ fees and bill of costs
pursuant to Fed. R. Civ. P. 54(d), Plaintiffs request that the deadlines pertaining to fees and costs

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be continued until the matter has been fully and finally resolved and a final judgment has been
entered by the Court.1
WHEREFORE, Plaintiffs American Educational Research Association, Inc., American
Psychological Association, Inc., and National Council on Measurement in Education, Inc.
respectfully request clarification from the Court confirming that the Order is not a judgment
upon which Plaintiffs may seek attorneys’ fees and costs pursuant to Federal Rule of Civil
Procedure 54(d). If the Court views the Order as a judgment upon which Plaintiffs may seek
attorneys’ fees and costs pursuant to Federal Rule of Civil Procedure 54(d), Plaintiffs
respectfully request that the deadlines to file any motion for attorneys’ fees and bill of costs be
continued until the matter has been fully and finally resolved and a final judgment has been
entered by the Court, and to grant such other relief that this Court deems just and appropriate.
Respectfully submitted,
QUARLES & BRADY LLP
Dated: February 10, 2017

By:

/s/ Jonathan Hudis
Jonathan Hudis (DC Bar # 418872)
Nikia L. Gray (Pro Hac Vice)
Jonathan P. Labukas (DC Bar # 998662)
1700 K Street NW, Suite 825
Washington, DC 20006-3825
Tel. [phone]
Fax [phone]
E-Mail [e-mail]
E-Mail [e-mail]
E-Mail [e-mail]
Counsel for Plaintiffs American Educational
Research
Association,
Inc.,
American
Psychological Association, Inc., and National
Council on Measurement in Education, Inc.

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Defendant was cited in an article published by Law360 dated February 3, 2017, attached hereto as Exhibit A, as
having “said [that Public.Resource.Org] planned to appeal the ruling” dated February 2, 2017. See Exhibit A, ll. 2123.

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