Fortgang et al v. Pereiras Architects Ubiquitous LLC et al

Filing 52

MEMORANDUM OF DECISION & ORDER: For the reasons stated above, the Court finds that the Plaintiffs' objections are improper and therefore reviews the R&R for clear error. The Court finds no clear error. Further, the Court also concurs with the R&R after conducting a de novo review. Accordingly, the R&R is adopted in its entirety and the Plaintiffs' objections are denied. SEE DECISION for further details. It is SO ORDERED by Judge Arthur D. Spatt on 3/27/2018. (Coleman, Laurie)

FILED 
CLERK 

11:41 am, Mar 27, 2018

U.S. DISTRICT COURT 
EASTERN DISTRICT OF NEW YORK 
LONG ISLAND OFFICE 

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------------------------X
SETH FORTGANG AND RIVKA FORTGANG
Plaintiffs,

MEMORANDUM OF
DECISION & ORDER
16-cv-3754 (ADS)(AYS)

-againstPEREIRAS ARCHITECTS UBIQUITOUS
LLC, FRIEDMAN GROUP LLC, DANIELLA
SCHWARTZ AND ARI SCHWARTZ,
Defendants.
---------------------------------------------------------X
APPEARANCES:
Stern & Schurin LLP
Attorneys for the Plaintiffs
595 Stewart Avenue, Suite 710
Garden City, NY 11530
By: Steven Stern, Esq.,
Richard Schurin, Esq.,
Michael Barer, Esq., Of Counsel

Gulko Schwed LLP
Attorneys for the Defendant Pereiras Architects Ubiquitous LLC
44 Wall Street
New York, NY 10005
By: Simcha Gitelis, Esq., Of Counsel
Greenberg Traurig, LLP
Attorney for the Defendants Friedman Group LLC, Daniella Schwartz & Ari Schwartz
200 Park Avenue, 38th Floor
New York, NY 10166
By: Daniel Schloss, Esq.,
Zachary Kleinsasser, Esq., Of Counsel

SPATT, District Judge.
On July 6, 2016, Seth Fortgang and Rivka Fortgang (the “Plaintiffs” or the “Fortgangs”),
commenced this copyright infringement action against the defendants, Pereiras Architects
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Ubiquitous LLC (“Pereiras”), the Friedman Group LLC (the “Friedman Group”), and Daniella
and Ari Schwartz (the “Schwartzes”) (all together, the “Defendants”) under the federal
Copyright Act of 1976, 17 U.S.C. § 101 et seq. The Fortgangs alleged that the Defendants
illegally infringed on copyrighted design elements of the Fortgangs’ home in Lawrence, New
York through the construction of a primary residence in Cedarhurst, New York.
The Plaintiffs’ complaint was dismissed by this Court on January 20, 2017. See Docket
Entry (“DE”) 26. Thereafter, the Court denied the Plaintiffs’ procedurally improper request for
leave to amend the complaint without prejudice to renew within 30 days as a formal motion,
consistent with Rule 15 of the Federal Rules of Civil Procedure (“FED. R. CIV. P.” or “Rule”).
Although the Plaintiffs timely moved to amend their complaint, it was subsequently withdrawn
on March 27, 2017. The Court dismissed the case the following day and the Clerk of the Court
issued a judgment.
On April 14, 2017, the Friedman Group and the Schwartzes (the “Moving Parties”) filed
a motion for attorneys’ fees pursuant to 17 U.S.C. § 505, and Rule 54(d). See DE 38. This
motion was fully briefed by July 28, 2017 and referred to Magistrate Judge Anne Y. Shields for a
report and recommendation as to whether the motion should be granted, and if so, to set forth the
relief warranted. See DE 48.
On March 23, 2018, the Plaintiffs, filed Objections to the March 9, 2018 Report and
Recommendation (“R&R”) of Magistrate Judge Anne Y. Shields entered in the above-captioned
case.
The R&R recommended that the Moving Parties’ motion for attorneys’ fees be granted in
full and that the Moving Parties be awarded $95,296.00 in attorneys’ fees and $6,544.00 in costs.
Specifically, Magistrate Judge Shields recommended that the Court find: (a) the Plaintiffs’
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allegations are not so extreme as to be considered frivolous but are objectively unreasonable; (b)
an award is further supported by the Plaintiffs’ bad faith; (c) an award furthers the purposes of
the Copyright Act; and (d) the requested fees are reasonable. See DE 49.
I. DISCUSSION
A. The Standard of Review
In the course of its review of a magistrate judge’s report and recommendation, the district
court “may accept, reject, or modify, in whole or in part, the findings or recommendations made
by the magistrate judge.” 28 U.S.C. § 636 (b)(1); see DeLuca v. Lord, 858 F. Supp. 1330, 1345
(S.D.N.Y. 1994).

Parties may raise objections to the magistrate judge’s report and

recommendation, but they must be “specific,” “written,” and submitted “[w]ithin 14 days after
being served with a copy of the recommended disposition.” FED. R. CIV. P. 72(b)(2); accord 28
U.S.C. § 636(b)(1)(C). The district court must conduct a de novo review of those portions of the
R&R or specified proposed findings or recommendations to which timely and proper objections
are made. 28 U.S.C. § 636(b)(1)(C); see FED. R. CIV. P. 72(b)(3) (“The district judge may
accept, reject, or modify the recommended disposition; receive further evidence; or return the
matter to the magistrate judge with instructions.”). The Court may adopt those portions of a
report and recommendation to which no timely objections have been made, provided no clear
error is apparent from the face of the record. Lewis v. Zon, 573 F. Supp. 2d 804, 811 (S.D.N.Y.
2008); Nelson v. Smith, 618 F. Supp. 1186, 1189 (S.D.N.Y. 1985).
In addition, “[t]o the extent . . . that the party makes only conclusory or general
arguments, or simply reiterates the original arguments, the Court will review the [R&R] strictly
for clear error.” IndyMac Bank, F.S.B. v. Nat’l Settlement Agency, Inc., No. 07–Civ.–6865, 2008
WL 4810043, at *1 (S.D.N.Y. Nov. 3, 2008); see also Toth v. N.Y. City Dep’t of Educ., No.
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14CV3776, 2017 WL 78483, at *7 (E.D.N.Y. Jan. 9, 2017) (“Reviewing courts should review a
report and recommendation for clear error where objections are merely perfunctory responses,
argued in an attempt to engage the district court in a rehashing of the same arguments set forth
in the original petition.” (quoting Ortiz v. Barkley, 558 F. Supp. 2d 444, 451 (S.D.N.Y.
2008))), vacated on other grounds sub nom. Toth on behalf of T.T. v. City of New York Dep't of
Educ., —F. App’x—, No. 17-383-cv, 2018 WL 258793 (2d Cir. Jan. 2, 2018); Frankel v. City of
N.Y., Nos. 06-Civ.-5450, 07-Civ.-3436, 2009 WL 465645, at *2 (S.D.N.Y. Feb. 25, 2009)
(“When a party makes only conclusory or general objections, or simply reiterates the original
arguments, the Court will review the [R&R] strictly for clear error.”); Pall Corp. v. Entergris,
Inc., 249 F.R.D. 48, 51 (E.D.N.Y. 2008) (holding that if the objecting party “makes only
conclusory or general objections, … the Court reviews the [R&R] only for clear error” (internal
citations omitted)). See, e.g., Frankel, 2009 WL 465645, at *2; Pearson–Fraser v. Bell Atl., No.
01-cv-2343, 2003 WL 43367, at *2 (S.D.N.Y. Jan.6, 2003).
“The goal of the federal statute providing for the assignment of cases to magistrates is to
increase the overall efficiency of the federal judiciary.” McCarthy v. Manson, 554 F. Supp. 1275,
1286 (D. Conn. 1982) (internal citations omitted), aff'd, 714 F.2d 234 (2d Cir. 1983). “There is
no increase in efficiency, and much extra work, when a party attempts to relitigate every
argument which it presented to the Magistrate Judge.” Toth, 2017 WL 78483, at *7 (quoting
Camardo v. Gen. Motors Hourly-Rate Emps. Pension Plan, 806 F. Supp. 380, 382 (W.D.N.Y.
1992)). “The question whether a party may raise a new legal argument for the first time in
objections to a magistrate judge’s report and recommendation has not yet been decided in this
Circuit.” Levy v. Young Adult Inst., Inc., 103 F. Supp. 3d 426, 433 (S.D.N.Y. 2015) (internal
citations, quotation marks, and alterations omitted).
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Many district courts in this Circuit hold that “‘new arguments and factual assertions
cannot properly be raised for the first time in objections to the R&R, and indeed may not be
deemed objections at all.’” Tarafa v. Artus, No. 10 CIV. 3870, 2013 WL 3789089, at *2
(S.D.N.Y. July 18, 2013) (quoting Smith v. Hulihan, No. 11-cv-2948, 2012 WL 4928904, at * 1
(S.D.N.Y. Oct. 17, 2012) (citing Forman v. Artuz, 211 F. Supp. 2d 415, 418 n. 8 (S.D.N.Y.
2000))); see also Toth, 2017 WL 78483, at *7 (“a district court generally should not entertain
new grounds for relief or additional legal arguments not presented to the magistrate” (quoting
Ortiz, 558 F. Supp. 2d at 451)); DeJesus v. Comm’r of Soc. Sec., No. 13-CV-2251, 2014 WL
5040874, at *1 (S.D.N.Y. Sept. 29, 2014) (“[A] party waives any arguments not presented to the
magistrate judge.” (emphasis in original) (quoting Tarafa, 2013 WL 3789089, at *2 (internal
quotation marks omitted))).
Other district courts have begun to apply a six-factor test to determine whether they
should exercise their discretion to consider arguments raised for the first time at the objections
stage:
(1)
the reason for the litigant’s previous failure to raise the new legal
argument; (2) whether an intervening case or statute has changed the state of the
law; (3) whether the new issue is a pure issue of law for which no additional factfinding is required; (4) whether the resolution of the new legal issue is not open to
serious question; (5) whether efficiency and fairness militate in favor or against
consideration of the new argument; and (6) whether manifest injustice will result
if the new argument is not considered.
Amadasu v. Ngati, No. 05 Civ. 2585, 2012 WL 3930386, at *5 (E.D.N.Y. Sept. 9, 2012); see
also Stock Mkt. Recovery Consultants Inc. v. Watkins, No. 13-CV-193, 2015 WL 5771997, at *3
(E.D.N.Y. Sept. 30, 2015); Levy, 103 F. Supp. 3d at 433–34; Wells Fargo Bank N.A. v. Sinnott,
No. 2:07-CV-169, 2010 WL 297830, at *4 (D. Vt. Jan. 19, 2010). In the interest of fairness, this
Court will apply the six factors to any new arguments raised.
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B. Application to the Facts
As a preliminary matter, the R&R specified to the parties that failure to file timely
objections to the R&R would constitute a waiver of those objections. See 28 U.S.C. § 636
(b)(1); FED. R. CIV. P. 72(b). The Court finds that the Plaintiffs timely filed an objection to the
R&R.
FED. R. CIV. P. 72(b) requires the objecting party to file “specific written objections to the
proposed findings and recommendations.” FED. R. CIV. P. 72(b)(2). To comply with the FED. R.
CIV. P., the objecting party “must point out the specific portions of the [R&R] to which they
object.” U.S. Flour Corp. v. Certified Bakery, Inc., No. 10-cv-2522, 2012 WL 728227, at *2
(E.D.N.Y. Mar. 6, 2012).
The Plaintiffs’ first objection concerns the R&R’s finding that the complaint was
objectively unreasonable.

They object for two reasons: (1) asserting a claim of copyright

infringement based on the copying of a combination of unprotectable design elements is
objectively reasonable; and (2) Zalewski v. Cicero Builder Dev. Inc., 754 F.3d 95 (2d Cir. 2014)
is distinguishable by recent second circuit jurisprudence. The first contention was already
presented in their original memorandum of law. See DE 42 at 10-14. The Plaintiffs argued that
the visual similarities between the two homes demonstrated that the Plaintiffs’ claim was
objectively reasonable. See, id. They simply repeat that argument now. “Clearly, parties are not
to be afforded a second bite at the apple when they file objections to a Report and
Recommendation.”

Camardo, 806 F. Supp. at 382 (internal citations and quotation marks

omitted). An attempt to rehash original arguments is not a proper objection. As such, the Court
reviews this portion of the R&R for clear error.

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The later reason provided by the Plaintiffs is that Zalewski is distinguishable by recent
caselaw. To distinguish Zalewski, the Plaintiffs cite one case from the Northern District of New
York that was issued in February of 2016. See Ranieri v. Adirondack Dev. Grp., 164 F. Supp. 3d
305 (N.D.N.Y. 2016). Ranieri was decided before the complaint in this case was even filed and
was not cited in the Plaintiffs’ original memorandum of law. No reason is provided for first
bringing this argument to light now. In the Court’s view, no manifest injustice will result if the
new argument is not considered because Ranieri is not binding on this Court. Moreover,
Magistrate Judge Shields already considered Ranieri’s application to the instant case and found it
distinguishable. In sum, the Court has already addressed this nonbinding, two-year old case that
is distinct from the present one. As the six factors weigh against the consideration of this new
argument, the Court finds that this objection is improper. O.M. v. CEC Entm’t Concepts, L.P.,
No. 14-CV-6041, 2016 WL 1275043, at *3 (E.D.N.Y. Mar. 31, 2016) (noting that courts
generally do not consider new evidence raised in an objection to a report and recommendation
“absent a compelling justification for failure to present such evidence to the magistrate judge”
(internal quotation marks and citations omitted)). Therefore, the Court will review that portion
of the R&R for clear error.
The Fortgangs’ second objection concerning the R&R contains five arguments: (1) the
Plaintiffs were not to blame for the purported “media frenzy”; (2) asserting infringement of the
interior floor plan was reasonable; (3) the R&R promoted inconsistent findings that it attributes
to bad faith; (4) determinations resulting from the parties’ settlement discussions must be
rejected; and (5) there is no finding of bad faith prior to the offer to change the exterior to a
partially brick façade and after the Defendants’ alleged rescission of settlement. However, the
Plaintiffs raised the first, fourth and fifth arguments throughout their memorandum of law. As
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mentioned previously, this is not a proper objection. As such, the Court will review the first,
fourth and fifth arguments of the Fortgangs’ second objection for clear error.
The second and third arguments of the second objection are tantamount to general
disagreements with the R&R. The R&R finds that the “totality of the circumstances in this case
make clear that the Fortgangs litigated this case in an unreasonable manner.” DE 49 at 25-26.
The Fortgangs’ second and third objections contend that individual actions that they took in the
litigation were reasonable. These arguments do not provide any specific reason as to why the
Court’s finding of bad faith is inaccurate, given the totality of the circumstances. Further, the
Plaintiffs do not cite any cases that this Court may review. These arguments to the second
objection are conclusory, broad and vague. Accordingly, the Court will also review these
portions of the R&R for clear error.
Finally, the Plaintiffs’ third objection, that the R&R’s decision to grant attorneys’ fees
undermines the goals of the copyright act, was also argued by the Plaintiffs in their memorandum
of law. The Fortgangs argue that “[t]he purposes of the Copyright Act are served when close
infringement cases are litigated.” DE 50 at 18. However, this argument was made in their
original memorandum of law. See DE 42 at 12. Therefore, as mentioned above, this is not a
proper objection. As such, the Court will review this portion of the R&R for clear error.
Therefore, as the Court has ruled that all of the Plaintiffs’ objections are improper, the
Court now reviews the R&R for clear error. The Court finds no clear error and adopts the R&R
in its entirety.
Nonetheless, in the interests of justice, the Court has afforded the Plaintiffs a de novo
review, although without proper objections to guide the Court. After a thorough, de novo review
of the R&R, the Court agrees with Magistrate Judge Shields’ well-reasoned R&R.
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II. Conclusion
For the reasons stated above, the Court finds that the Plaintiffs’ objections are improper
and therefore reviews the R&R for clear error. The Court finds no clear error. Further, the
Court also concurs with the R&R after conducting a de novo review. Accordingly, the R&R
is adopted in its entirety and the Plaintiffs’ objections are denied.

It is SO ORDERED:
Dated: Central Islip, New York
March 27, 2018
__/s/ Arthur D. Spatt__
ARTHUR D. SPATT
United States District Judge

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