Under A Foot Plant, Co. v. Exterior Design, Inc., et al

Filing 172

MEMORANDUM AND ORDER denying 152 Plaintiff's Motion for Award of Prejudgment Interest. Signed by Magistrate Judge Beth P. Gesner on 12/14/2017. (bmhs, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
UNDER A FOOT PLANT, CO.,
Plaintiff,
Civil No.: BPG-15-871

V.
EXTERIOR DESIGN, INC.,
Defendant.

MEMORANDUM AND ORDER
In this copyright infringement action, a jury found that defendant infringed plaintiff's
copyrighted plant photographs and awarded plaintiff actual and statutory damages. Currently
pending before the court is: Plaintiffs Motion for Award of Prejudgment Interest ("Motion")
(ECF No. 152), Defendant's Opposition to Plaintiffs Motion for Award of Prejudgment Interest
("Opposition") (ECF No. 155), Plaintiffs Reply in Support of Plaintiffs Motion for Award of
Prejudgment Interest ("Reply") (ECF No. 162.), Supplemental Memorandum in Support of
Motion for Award of Prejudgment Interest ("Plaintiffs Supplement") (ECF No. 169), and
Defendant's Supplemental Submission Regarding the Timeliness of Plaintiff's Rule 59(e)
Motion for Prejudgment Interest ("Defendant's Supplement") (ECF No. 170). The issues are
fully briefed, and no hearing is necessary.
plaintiffs Motion (ECF No. 152) is DENIED.

Loc. R. 105.6. For the reasons stated below,

I.

BACKGROUND
The facts and procedural history of this case are set forth in Under A Foot Plant, Co. v.

Exterior Design, Inc., No. BPG-15-871, 2016 WL 4555021 (D. Md. Sept. 1, 2016) (ECF No.
65), and in this court's memorandum and order denying defendant's renewed motion for
judgment as a matter of law, or alternatively, for a new trial (ECF No. 150). In brief, plaintiff
brought suit under section 501 of the Copyright Act, see 17 U.S.C. § 501, alleging that
defendant, a wholesale nursery, infringed plaintiff's copyrights in certain photographic plant
images by using them in its marketing materials without permission. On May 11, 2017, a jury
returned a verdict awarding plaintiff $900,000 in actual damages and $300,000 in statutory
damages for defendant's infringements of twenty-three of plaintiff's copyrighted plant images.
Plaintiff subsequently elected actual damages pursuant to 17 U.S.C. § 504(c)(1), and moved for
costs and attorneys' fees under 17 U.S.C. § 505.

On August 18, 2017, this court denied

defendant's renewed motion for judgment as a matter of law or for a new trial and on September
1, 2017, this court denied Plaintiff's Motion for Attorney Fees. Plaintiff's Motion is now fully
ripe for review.

DISCUSSION
In its Motion, plaintiff seeks prejudgment interest on the jury award. Defendant opposed
the Motion, first arguing that plaintiffs Motion is untimely. Because plaintiff's Reply briefly
responded, but did not address this argument on the merits, the court asked the parties to file
additional briefs on the timeliness issue.

(ECF No. 168).

The court has considered the

supplemental briefings, as well as the other pertinent pleadings, and, for the reasons noted below,
concludes that plaintiff's Motion is untimely.

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This court entered judgment on May 19, 2017. Four days later, on May 23, 2017, the
parties filed a Stipulated and Joint Motion Re Schedule for Post-Verdict Motions ("Stipulation")
(ECF No. 116) and the court approved the order (ECF No. 118). The Stipulation provided that
post-verdict motions, including Rule 59(e) motions, would be filed no later than 28 days after
entry of judgment as required by Rule 59(e). In a separate section of the Stipulation, the
deadline for motions for attorneys' fees, costs, and prejudgment interest was 14 days after the
last post-trial motion was filed. (ECF No. 118). Clearly, the parties did not consider a motion
for prejudgment interest to be a Rule 59(e) motion. Plaintiff filed the instant Motion on August
31, 2017, which was timely in accordance with the Stipulation, but was well beyond the required
deadline for Rule 59(e) motions.
A motion for discretionary prejudgment interest is characterized as a Rule 59(e) motion
under the federal rules. See Osterneck v. Ernst & Whinney, 489 U.S. 169 (1989) (holding that a
post judgment motion for discretionary prejudgment interest constitutes a motion to alter or
amend under Rule 59(e)). Rule 59(e) motions must be filed no later than 28 days after the entry
of judgment. Fed. R. Civ. P. 59(e). Pursuant to Rule 6(b)(2), a court "must not extend time to
act under Rule[]" 59(e). Fed. R. Civ. P. 6(b)(2). The Fourth Circuit has held that a district court
has no authority to extend the filing period for Rule 59(e) motions. See Panhorst v. United
States, 241 F.3d 367 (4th Cir. 2001). In Panhorst, the district court entered judgment on March
3, 1998, and, on March 20, 1998, the plaintiff filed a motion for reconsideration under Rule 59,
beyond the then 10 day deadline! Id. at 369. The plaintiff also filed a motion for leave to file
along with an order for the court's signature allowing her to file her untimely Rule 59 Motion.
Id. The district court signed the order and then ruled on the merits of the 59(e) motion. Id. The
Fourth Circuit held that the district court could not extend the deadline for a Rule 59 motion
The applicable deadline for Rule 59(e) motions changed from 10 to 28 days in 2009. Fed. R. Civ. P. 59(e).

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because Rule 6(b) prohibits it. Id. at 373. The court stated that "Rule 59(e), in turn, simply does
not provide any mechanism for extending the prescribed ten-day filing deadline. Thus, the
Federal Rules clearly prescribe that a motion under Rule 59(e) must be filed within ten days after
entry of the judgment, and the Rules just as clearly provide the district court with no authority to
extend the filing period." Id. at 370.
Similarly, in Alston v. MCI Communications Corp., 84 F.3d 705 (4th Cir. 1996), the
Fourth Circuit refused to allow an extension of the Rule 59(e) deadline. In Alston, the district
court entered judgment on December 30, 1994. On January 12, 1995, Alston moved to extend
the 10 day period of time to file a motion to alter or amend the judgment. Id. at 706. The district
court granted Alston's motion, and, thereafter, Alston filed his motion "presumably because the
district court . . . granted him an extension of time to file his Rule 59(e) motion. . . ." Id. The
Fourth Circuit held that "the district court was without power to enlarge the time period for filing
a Rule 59(e) motion." Id. Relying upon Rule 6(b), the Fourth Circuit held that "the district
court's order extending the time to file the motion to alter or amend the judgment was not
authorized under the Federal Rules of Civil Procedure." Id.; see also United States v. Brightman,
408 Fed. App'x 746, 748 (4th Cir. 2011) (citing Panhorst and Alston in concluding that the
district court "was without power to do so" when it entertained an untimely Rule 59(e) motion);
United States v. Griffin, 397 Fed. App'x 902, 903 (4th Cir. 2010) (citing Panhorst and Alston
when finding that "though Griffin did move for, and was granted, an extension of time in which
to file his motion, the district court was without power to enlarge the time for filing a Rule 59(e)
motion."); Lichtenberg v. Besicorp. Group. Inc., 204 F.3d 397 (2d Cir. 2000) (parties' stipulation
and court approval thereof, extending time to file a Rule 59(e) motion, was ineffective as the
court had no authority to grant such a request.)

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The only recognized exception to this rule is the "unique circumstances" doctrine, relied
upon by plaintiff, which has provided a very limited opportunity for a court to excuse the
tardiness of an untimely Rule 59(e) motion. See Thompson v. INS, 375 U.S. 384 (1964). The
doctrine permits courts to excuse untimeliness where a party received specific and affirmative
assurance by a judicial officer that the late filing would be accepted. In Thompson, the Supreme
Court affirmed the late filing where the district court assured the party at an open hearing that it
had filed its late motion "in ample time". Id. at 387. Thereafter, the Supreme Court noted that
the doctrine was specifically limited to instances where a party "has received specific assurance
by a judicial officer that this act has been properly done." Osterneck v. Ernst & Whinney, 489
U.S. 169, 179 (1989).
This doctrine has been increasingly narrowed by the courts, and the Fourth Circuit,
among others, has called the vitality of the doctrine into question. In Panhorst, the Fourth Circuit
rejected the application of the doctrine, finding that no "specific assurance by a judicial officer"
was present where the court simply signed off on an order granting an extension. 241 F.3d at
373 (quoting Osterneck, 489 U.S. at 179). "At most, the 'assurance' given by the court was that
it would excuse the improper filing of an untimely Rule 59 motion and consider the motion on
its merits out of time." Id. at 372-73 (emphasis in original). Additionally, the doctrine requires
reasonable reliance on the assurance in order to obtain the benefit of the doctrine. The Panhorst
court stated that "we agree with the Second, Third, Tenth, and Eleventh circuits that a party
cannot reasonably rely on a district court's improper extension of time where the party requests
relief that, as a plain reading of the Rules would show, is beyond the court's authority." Id.; see
also Endicott Johnson Corp. v. Liberty Mutual Ins. Co., 116 F.3d 53, 57-58 (2d Cir. 1997) ("The
fact that the court simply signed orders presented to it, purporting to grant the parties' joint

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requests for relief, does not constitute 'unique circumstances."); Pinion v. Dow Chem., USA,
928 F.2d 1522 (11th Cir. 1991) (defendant could not have• reasonably relied on order because
Rules make filing deadlines clear).
In this case, plaintiff's Motion was clearly filed beyond the 28 day period allowed by
Fed. R. Civ. P. 59(e). Based upon the case law discussed above and the plain language of Fed.
R. Civ. P. 6(b)(2), the court does not have the authority to extend that deadline. Nor do the facts
here give rise to the application of the unique circumstances doctrine so as to allow the untimely
filing of plaintiffs Motion. "[T]he unique circumstances principle has no application where the
parties stipulated to extensions of time that were prohibited by the Rules, and which the district
court approved despite lacking the power to approve." Lichtenberg, 204 F.3d at 402. The court's
approval of an extension order under the circumstances of this case does not constitute
affirmative assurance by the court.

See Panhorst, 241 F.3d at 372 (application of doctrine

rejected on similar facts). As the Fourth Circuit noted in Panhorst, "a litigant 'has a duty to
familiarize himself with the [federal] rules,' which clearly prohibit an extension of time in which
to file a Rule 59 motion, [therefore] we cannot say that appellants' reliance on the district court's
acceptance of the submitted order was reasonable." Id. at 373. In this regard, it is of note that the
Stipulation regarding the filing of post-verdict motions did not identify the Motion for
Prejudgment Interest as a Rule 59(e) motion, but rather grouped that Motion with a request for
attorneys' fees and costs pursuant to Fed. R. Civ. P. 54(d)(1) and Local Rule 109. (ECF No.
116).2 Thus, it is evident that the parties stipulated to extensions that were prohibited by the

Moreover, plaintiff's reliance on Kosnoski v. Howley, 33 F.3d 376 (4th Cir. 1996) (ECF No. 169 at 3) is misplaced
as there, the court concluded that the untimely motion at issue was a Rule 60, not a Rule 59, motion because the
court included an award of prejudgment interest in its judgment, leaving open the question of the amount.

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Rules. Under these circumstances, there is no legal authority supporting plaintiffs argument that
the court may allow the untimely filing of plaintiff's Motion.3
III.

CONCLUSION

For the foregoing reasons, plaintiffs Motion (ECF No. 152) is DENIED.

Date: December 14, 2017
Chief United States Magistrate Judge

3 The court also rejects plaintiffs argument that it used the same type of stipulation it used in another case, where
the court held open final judgment pending resolution of the motions. (ECF No. 169 at 3). Plaintiff did not request
that the court do so here. Nor does plaintiffs argument that the defendant, in essence, waived the right to raise the
timeliness argument (Id.) carry any weight because the court has an independent obligation to address the timeliness
of plaintiffs Motion.

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