MALIBU MEDIA, LLC v. JOHN DOES 1-11
Filing
313
ORDER overruling Defendant HARRISON's 269 Objection to Magistrate Judge Dinsmore's order granting Malibu Media its fees and expenses in relation to Harrison's motion to compel. Harrison and his counsel Gabriel J. Querry are joint ly and severally liable for Malibu Media's fees and expenses in the amount of $7,961.25. Harrison and/or his counsel have thirty days from the date of this entry to pay this amount. SEE ORDER. Signed by Judge William T. Lawrence on 2/10/2015. (BGT)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
MALIBU MEDIA, LLC,
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Plaintiff,
vs.
MICHAEL HARRISON,
Defendant.
Cause No. 1:12-cv-1117-WTL-MJD
ENTRY ON DEFENDANT’S OBJECTION TO MAGISTRATE JUDGE’S ORDER
AWARDING PLAINTIFF ATTORNEY FEES AND EXPENSES
This cause is before the Court on Defendant Michael Harrison’s objection to Magistrate
Judge Dinsmore’s order granting Plaintiff’s motion for fees and expenses (and supplemental
request for fees) (Dkt. No. 269). The Court, having reviewed the relevant portions of the record,
OVERRULES Harrison’s objection, for the reasons set forth below.
I.
BACKGROUND
On February 25, 2013, Plaintiff Malibu Media, LLC, filed its Third Amended Complaint
against Harrison (and several other Defendants) alleging claims of direct copyright infringement
and contributory copyright infringement. Dkt. No. 59. Thereafter, Harrison moved to compel
certain discovery from Malibu Media. Dkt. No. 150. Subsequently, Malibu Media withdrew its
contributory copyright infringement claim, leaving only its claim of direct copyright
infringement against Harrison. See Dkt. No. 165.
Magistrate Judge Dinsmore ultimately denied Harrison’s motion to compel on various
grounds. Dkt. No. 179. Thereafter, Harrison objected to a portion of the Magistrate Judge’s
ruling. Dkt. No. 180. This Court overruled the objection, finding that Magistrate Judge
Dinsmore’s ruling was neither clearly erroneous nor contrary to law. Dkt. No. 253.
In denying Harrison’s motion to compel, the Magistrate Judge also noted that, pursuant to
Federal Rule of Civil Procedure 37(a)(5)(B), Malibu Media could submit a petition for the fees
and expenses it incurred in responding to Harrison’s motion to compel. Dkt. No. 179 at 5.
Malibu Media did so on May 15, 2014, and supplemented its fee request on June 2, 2014.1 Dkt.
Nos. 181, 187. On October 23, 2014, finding that Harrison’s motion to compel lacked
“substantial justification,” Magistrate Judge Dinsmore granted Malibu Media’s motion for
attorney fees and expenses (and supplemental fees) and awarded it $7,016.25. Dkt. No. 262.
II.
STANDARD
Under Rule 37, the court “must . . . require the movant, the attorney filing the motion, or
both to pay the party or deponent who opposed the motion its reasonable expenses incurred in
opposing the motion, including attorney’s fees,” unless the motion was “substantially justified
or other circumstances make an award of expenses unjust.” Fed. R. Civ. P. 37(a)(5)(B). The Rule
“presumptively requires every loser to make good the victor’s costs.” Rickels v. City of S. Bend,
Ind., 33 F.3d 785, 786 (7th Cir. 1994).
Harrison objects to the Magistrate Judge’s decision awarding Malibu Media its fees and
expenses and requests review by this Court. Harrison’s objection is made pursuant to Federal
Rule of Civil Procedure 72(a). Accordingly, the Court must set aside the Magistrate Judge’s
ruling on this nondispositive issue if it “is clearly erroneous or is contrary to law.” Fed. R. Civ.
P. 72(a).
III.
DISCUSSION
The Court will discuss Harrison’s arguments regarding each individual request in turn.
1
Malibu Media requested reimbursement for the additional fees it incurred in responding
to Harrison’s objection to Magistrate Judge Dinsmore’s order denying his motion to compel.
2
A. Request No. 6
With regard to Request No. 6, Magistrate Judge Dinsmore concluded, for the most part,
that because the contributory infringement claim had been withdrawn, the information sought in
that request was not relevant.2 Harrison argued that the information only became irrelevant after
Malibu Media filed its Fourth Amended Complaint, which withdrew the contributory
infringement claim, six days after the parties finished briefing the motion to compel. Thus,
according to Harrison, at all times relevant to the motion to compel, he faced a contributory
infringement claim. Magistrate Judge Dinsmore concluded, however, that Harrison “knew that
contributory infringement would not be an issue in this lawsuit as early as October, 2013,” three
months before it filed its motion to compel. Dkt. No. 262 at 4.
Harrison also argued that the information in Request No. 6 was relevant on other
grounds. The Magistrate Judge concluded, however, that his additional arguments “lacked
substance.” This Court also agreed with Malibu Media that “Defendant’s infringing transactions
with third parties [was] not the same infringing conduct at issue in this lawsuit.” Dkt. No. 253 at
3. For these reasons, the Magistrate Judge concluded that Harrison lacked a substantial
justification for moving to compel a response to Request No. 6.
2
Request No. 6 sought:
Copies of any and all documents, electronically stored information, and tangible
things, including but not limited to technical and data reports, for each IP Address
listed on Exhibit A of Plaintiff’s Third Amended Complaint relating to the
identification of those IP Addresses as infringing IP Addresses of your copyrighted
work, “Pretty Back Door Baby,” and the alleged BitTorrent “swarm” that those IP
Addresses participated in and which formed the basis of your contributory
copyright infringement claims against any and all individuals in this case.
Dkt. No. 151-1 at ¶ 6.
3
Harrison now argues that because an amended complaint does not officially supersede a
prior complaint until the amended complaint is filed, the Magistrate Judge’s decision was
contrary to Seventh Circuit case law. He further argues that it was improper to assume what
Harrison might have known regarding the contributory infringement claim because “no party can
predict whether the Court will grant or deny any particular motion.” Dkt. No. 269 at 6. Indeed,
Harrison “aggressively opposed” Malibu Media’s motion to amend its complaint (on grounds
unrelated to the contributor infringement claim, of course). Therefore, he really did not know
when he filed his motion to compel that the claim would not be at issue. The Court is not
persuaded by Harrison’s arguments.
The record clearly indicates that on October 2, 2013, Malibu Media notified the Court
and Harrison that it “decided not to pursue its claim for contributory infringement.” Dkt. No. 130
at 2. Although Malibu Media’s Fourth Amended Complaint was not filed until March 7, 2014, it
was obvious in October that any claim for contributory infringement would not be at issue. Case
law regarding when an amended complaint officially supersedes a prior complaint is irrelevant to
the specific issue in this case.
In short, the Court agrees with Magistrate Judge Dinsmore’s reasoning and conclusions
with respect to this request.
B. Request No. 7
Moving on to Request No. 7, Magistrate Judge Dinsmore concluded that Harrison’s
argument was not yet “ripe” when he filed his motion to compel, because Malibu Media had
agreed to produce the responsive documents subject to a protective order.3 Harrison’s argument
3
Request No. 7 sought:
4
as to why the Magistrate Judge’s ruling on this issue is incorrect is not entirely clear. It appears
Harrison makes the same argument he previously made to the Magistrate Judge, that because
Malibu Media did not initially object to the production of the responsive documents, it could not
later claim that the documents should be produced pursuant to a protective order. Again, this
argument is not persuasive. As Magistrate Judge Dinsmore concluded, Malibu Media did not
refuse to provide the documents, such that there was a “genuine dispute” as to provide grounds
for a motion to compel. The Court agrees with this conclusion.
Harrison also appears to be upset with the documents ultimately produced by Malibu
Media in response to this request, such that, in retrospect, he had grounds to pursue his motion to
compel. Harrison, however, states very little in support of this argument.4 The Court thus
Copies of any and all contracts, modifications of an amendments to contracts, bills
of sale, purchase orders, receipts, invoices, billing statements, and the like
memorializing or reflecting any agreement or other arrangement, and the like
between you, any and all parent, sister, subsidiary, affiliated, or otherwise related
entities of you, X-Art, X-Art affiliates and X-Art affiliated programs (collectively,
“you”) and any and all individuals or entities related to your inquiring, negotiating,
hiring, rewarding, retaining, employing, or otherwise arranging to compensate
those individuals or entities regarding the online security of your websites, the
unauthorized production of hard copies and/or digital copies your copyrighted
works, and/or to otherwise create, develop, implement, or maintain any sort of
technological securities, safeguards, protective measures, mechanisms, and the like
to cease, prevent, or curtail the online infringement of your copyrighted works.
Dkt. No. 151-1 at ¶ 6.
4
Harrison simply states that
In the end, Plaintiff never had any security agreements or contracts, and only
produced a two-page document showing various payments Plaintiff made to these
individuals at times completely irrelevant to this lawsuit . . . . However, the
deposition testimony of Plaintiff’s designated corporate representative potentially
contradicted Plaintiff’s Counsel’s email in this regard.
Dkt. No. 269 at 11-12.
5
considers this argument waived. See Puffer v. Allstate Ins. Co., 675 F.3d 709, 718 (7th Cir. 2012)
(undeveloped and unsupported arguments considered waived).
In sum, the Court does not find Magistrate Judge Dinsmore’s order with respect to
Request No. 7 contrary to law or clearly erroneous.
C. Request No. 9
Next, Magistrate Judge Dinsmore determined that Harrison’s motion to compel with
respect to Request No. 9 was not substantially justified because Harrison had not demonstrated
the relevance of the unavailable information.5 Citing Rule 26, Harrison argues simply that
“reasonable persons could disagree as to whether a genuine dispute existed regarding [the]
production of the requested DMCA Notices.” Dkt. No. 269 at 12. Harrison’s argument, however,
is unsupported and misses the point. Magistrate Judge Dinsmore found that Harrison failed to
demonstrate why the information was relevant. This was Harrison’s burden. Because Harrison
did not establish why the information was relevant, the motion to compel was not substantially
justified. It does not now matter what a “reasonable person” might have thought about the
DMCA Notices. Having no other valid argument, Harrison fails to demonstrate why this decision
was clearly erroneous or contrary to law. Thus, the Court will not sustain Harrison’s objection
with respect to this Request.
D. Unjust Circumstances
Lastly, Harrison argues that Magistrate Judge Dinsmore’s reliance on the notes following
Rule 37 was improper.6 Magistrate Judge Dinsmore noted that, in determining whether a party
5
Request No. 9 sought “[c]opies of any and all DMCA Take-Down Notices issued by
you and/or any and all individuals or entities action on your behalf.” Dkt. No. 151-1 at ¶ 9.
6
Rule 37(a)(5)(B) states, in part, that “the court must not order . . . payment if . . . other
circumstances make an award of expenses unjust.”
6
lacked a substantial justification for his motion to compel, “[t]he court should assess whether the
prevailing party ‘acted unjustifiably’ or otherwise engaged in ‘abusive practices.’” (quoting Fed.
R. Civ. P. 37 Notes of Advisory Committee – 1970 Amendment). Harrison argues that these are
not the only circumstances that would make an award of fees unjust, and it was improper for the
Magistrate Judge to limit the “unjust” language in Rule 37 accordingly. Harrison, however, fails
to demonstrate or even argue that some other “circumstance” in this case makes the award of
fees unjust. In other words, he fails to articulate any reason why the Magistrate Judge’s decision
to award fees and expenses was unjust in light of the facts of this case. As such, the Court is not
persuaded by Harrison’s argument.
As a final note, the Court finds that Magistrate Judge Dinsmore’s reliance on Tecnomatic,
S.p.A. v. Remy, Inc., No. 1:11-cv-991-SEB-MJD (S.D. Ind. Dec. 17, 2013), and Lincoln
Diagnostics, Inc. v. Panatrex, Inc., No. 07-CV-2077, 2008 WL 4330182 at *3 (C.D. Ill. Sept. 16,
2008), was not improper. Although the facts of these cases are distinguishable from the present
case, the legal propositions for which Magistrate Judge Dinsmore cited the cases remains correct
and on point.
IV.
CONCLUSION
For the foregoing reasons, Harrison’s objection to Magistrate Judge Dinsmore’s order
granting Malibu Media its fees and expenses in relation to Harrison’s motion to compel (and his
related objection) (Dkt. No. 269) is OVERRULED in its entirety.
7
Harrison and his counsel Gabriel J. Querry are jointly and severally liable for
Malibu Media’s fees and expenses in the amount of $7,961.25.7 Harrison and/or his counsel
have thirty days from the date of this entry to pay this amount.
SO ORDERED: 2/10/15
_______________________________
Hon. William T. Lawrence, Judge
United States District Court
Southern District of Indiana
Copies to all counsel of record via electronic communication.
7
Malibu Media requested reimbursement for the additional fees it incurred in responding
to Harrisons’ objection to Magistrate Judge Dinsmore’s fee award. The Court finds Malibu
Media’s request for an additional $945.00 (i.e., 4.2 hours at $225.00 per hour) to be reasonable.
8
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