Muench Photography, Inc. v. Houghton Mifflin Harcourt Publishing Company et al
Filing
110
MEMORANDUM & ORDER granting in part and denying in part 96 Motion for Partial Summary Judgment. Defendants' motion for partial summary judgment is GRANTED in part and DENIED in part. The Court grants summary judgment in favor of Defendants on the claims set forth in Lines 239, 253, 267, 284, 378, and 434 of Exhibit A. The Court further grants summary judgment in favor of Defendants on statute of limitations grounds with respect to the printing of any images at issue in this suit that occu rred prior to March 23, 2006. Finally, the Court denies as premature the remainder of Defendants' motion for summary judgment. The parties shall confer and inform the Court by letter no later than September 9, 2013, as to how they wish to proceed. (Signed by Judge Loretta A. Preska on 8/21/2013) (tn)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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--X
MUENCH PHOTOGRAPHY, INC.,
09 CV 2669 (LAP)
MEMORANDUM & ORDER
Plaintiff,
v.
USDCSDNY
DOCtTh.ffiNT
ELECTRONICALLY FILED
HOUGHTON MIFFLIN HARCOURT
PUBLISHING CO, and
R.R. DONNELLY & SONS CO.
DOC#:
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DATE FILED:
Defendants.
--X
LORETTA A. PRESKA, Chief United States District Judge:
Defendants, Houghton Mifflin Harcourt Publishing Company
("HMH") and R. R. Donnelley & Sons Company ("Donnelly,
together with HMH,
II
and
"Defendants") bring this motion seeking
partial summary judgment on certain claims brought by Muench
Photography, Inc.
("Muench" or "Plaintiff")
[dkt. no. 96].
For
the reasons set forth below, Defendants' motion is GRANTED in
part and DENIED in part.
I. BACKGROUND
Plaintiff brought this action on March 23, 2009.
Complaint [dkt. no. 1]
("Original Complaint").)
(See
The Court
presumes the parties' familiarity with the facts of this case,
as previously recounted at length
the Court's opinions in
Muench Photography, Inc. v. HMH ("Muench I"), 712 F. Supp. 2d
84, 94-95 (S.D.N.Y. 2010), Muench Photography, Inc. v. HMH
(“Muench II”), No. 09 Civ. 2669, 2010 WL 3958841 (S.D.N.Y. Sept.
27, 2010), and Muench Photography, Inc. v. HMH (“Muench III”),
No. 09 Civ. 2669, 2012 WL 1021535 (S.D.N.Y. Mar. 26, 2012).
Between Meunch II and Muench III, Plaintiff filed its First
Amended Complaint (the “FAC”) [dkt. no. 74] on March 25, 2011.
After Muench III, fifty-one claims involving thirty-four unique
images remain at issue in this action, all of which are
registered in a single compiltation of David Muench’s images.
(Def.’s R. 56.1 Statement [dkt. no. 98] ¶¶ 22-23.)
Defendants
now request partial summary judgment on certain claims by
Plaintiff related to the image uses set forth on Lines 3, 16,
18, 19, 26, 27, 37, 47, 59, 60, 72, 77, 87, 88, 106, 127, 128,
143, 155, 164, 171, 181, 211, 218, 227, 235, 236, 239, 253, 256,
267, 271, 279, 284, 294, 306, 315, 333, 336, 357, 359, 374, 376,
378, 384, 392, 394, 409, 427, 431, and 434 in Exhibit A to the
First Amended Complaint (“Exhibit A”), (see FAC, Ex. A).
A.
Undisputed Facts Relating to Use of Images
Copies of products relating to Invoice Number 779828
(corresponding to Line 227 of Exhibit A) were not printed after
March 23, 2006.
Plaintiff alleges in the FAC that this invoice
contains a print run limit of 63,200.
The actual use under this
invoice is more than 63,200. (Def.’s R. 56.1 Statement ¶¶ 2627.)
2
For the following set of invoices, which were included in
Plaintiff’s claims as alleged in both its Original Complaint and
the FAC, copies of products relating to the relevant uses were
printed after March 23, 2006.
(See id. ¶¶ 29, 31, 33, 35, 37,
41, 43, 45, 47, 49.):
Plaintiff alleges in the FAC that Invoice Number
152536 (corresponding to Line 16 of Exhibit A) contains a
print run limit of 140,000.
The actual use under this
invoice is more than 140,000, and copies of products
relating to this use were printed after March 23, 2006.
(Id. ¶ 28.)
Plaintiff alleges that Invoice Number 153497
(corresponding to Line 18) contains a print run limit of
250,000.
The actual use under this invoice is more than
250,000.
(Id. ¶ 30.)
Plaintiff alleges that Invoice Number 153580
(corresponding to Line 19) contains a print run limit of
250,000.
The actual use under this invoice is more than
250,000.
(Id. ¶ 32.)
Plaintiff alleges that Invoice Number 185635
(corresponding to Line 37) contains a print run limit of
40,000.
The actual use under this invoice is more than
40,000.
(Id. ¶ 34.)
3
Plaintiff alleges that Invoice Number 250599
(corresponding to Line 72) contains a print run limit of
250,000.
The actual use under this invoice is more than
250,000.
(Id. ¶ 36.)
Plaintiff alleges that Invoice Number 344431
(corresponding to Line 88) contains a print run limit of
40,000.
The actual use under this invoice is more than
40,000.
(Id. ¶ 40.)
Plaintiff alleges that Invoice Number 579894
(corresponding to Line 155) contains a print run limit of
258,000.
The actual use under this invoice is more than
258,000.
(Id. ¶ 42.)
Plaintiff alleges that Invoice Number 703258
(corresponding to Line 181) contains a print run limit of
100,000.
The actual use under this invoice is more than
100,000.
(Id. ¶ 44.)
Plaintiff alleges that Invoice Number 762573
(corresponding to Line 218) contains a print run limit of
80,000.
The actual use under this invoice is more than
80,000.
(Id. ¶ 46.)
Plaintiff alleges that Invoice Number 834539
(corresponding to Line 256) contains a print run limit of
4
280,000.
The actual use under this invoice is more than
280,000.
(Id. ¶ 48.)
Additionally, the parties do not dispute that Plaintiff
alleges that Invoice Number 271885 (corresponding to Line 77)
contains a print run limit of 60,000.
invoice is more than 60,000.
The actual use under this
For this invoice, which was not
included in Plaintiff’s claims until it filed the FAC, copies of
products relating to this use were printed after March 25, 2008.
(Id. ¶¶ 38-39.)
It is further undisputed that certain products were not
printed by HMH.
HMH did not publish the products identified in
Lines 239, 253, 284, 378, and 434 of Exhibit A.
(Id. ¶ 81.)
Also, HMH did not publish the Science 2007 product identified in
Invoice Number 6016773 (corresponding to Line 267).
The invoice
for the use in a Science 2008 product appearing on Invoice
Number 6020201 (corresponding to Line 271) replaced the invoice
for the use alleged on Line 267.
As such, the use alleged on
Line 267 corresponding to Invoice Number 6016773 is covered by
Invoice Number 6020201.
(Id. ¶ 82.)
Finally, it is undisputed that HMH did not use the images
identified on Lines 3 and 127 of Exhibit A in the title
specified in those lines, respectively.
5
(Id. ¶ 83.)
B.
Facts for Which Plaintiff Claims to be without
Sufficient Information to Admit or Deny
Defendants asserts in their Rule 56.1 Statement that for
certain images the actual use under the associated invoices is
less than the respective print run limits Plaintiff alleges in
its Complaint.
(See id. ¶¶ 50-80.)
These invoices include
Invoice Numbers 164500 (corresponding to Lines 26 and 27 of
Exhibit A), 212701 (corresponding to Line 47), 239761
(corresponding to Lines 59 and 60), 342441 (corresponding to
Line 87), 414528 (corresponding to Line 106), 520157
(corresponding to Line 128), 555084 (corresponding to Line 143),
638735 (corresponding to Line 164), 676867 (corresponding to
Line 171), 752909 (corresponding to Line 211), 788662
(corresponding to Lines 235 and 236), 6020201 (corresponding to
Line 271), 6024543 (corresponding to Line 279), 6037358
(corresponding to Line 294), 6039610 (corresponding to Line
306), 6056277 (corresponding to Line 315), 6090177
(corresponding to Line 333), 6091201 (corresponding to Line
336), 6106387 (corresponding to Line 357), 6109353
(corresponding to Line 359), 7028622 (corresponding to Line
374), 7040320 (corresponding to Line 376), 7047443
(corresponding to Line 384), 7082613 (corresponding to Line 392)
7102116 (corresponding to Line 394), 8034904 (corresponding to
Line 409), 8072975 (corresponding to Line 427), and 9007059
6
(corresponding to Line 431).
(See id.)
For each of these
statements of Defendants, Plaintiff stated in its Response to
Defendants’ Rule 56.1 Statement [dkt. no. 103-1]:
“Plaintiff is
without sufficient information to admit or deny and requests
permission to conduct discovery before the Court rules on
Defendants’ motion on this ground pursuant to Rule 56(d).”
(See
Pl.’s R. 56.1 Resp. ¶¶ 50-79.1)
In support of this statement, Plaintiff has submitted the
following set of facts as part of its Response to Defendants’
Rule 56.1 Statement.
On April 13, 2012, the Court issued a
Scheduling Order setting forth the briefing schedule on
Defendants’ motion for summary judgment on statute of
limitations grounds.
¶ 86.)
(See [dkt. no. 90]; Pl.’s R. 56.1 Resp.
Then, on May 3, 2012, HMH submitted a letter to the
Court asking for an extension of the briefing schedule for its
motion for summary judgment “which would address the three-year
statute of limitations and identify which of the remaining 51
uses should be dismissed from this action.”
1
(See [dkt. no. 95];
Upon comparing both parties Rule 56.1 Statements and the
organization therein, it is apparent to the Court that Plaintiff
intended to make such a statement as to each of Defendants’
statements contained in Paragraphs 50 through 80 but
inadvertently stopped at 79. This is so because Plaintiff
continues responding under the “D. Product Not Printed” heading
with the number 80, which apparently should correspond to 81 in
Defendants’ Rule 56.1 Statement. (Compare Pl.’s Rule 56.1 Resp.
¶¶ 50-82 with Defs.’ Rule 56.1 Statement ¶¶ 50-83.)
7
Pl.’s R. 56.1 Resp. ¶ 87.)
Based on these filings and HMH’s
statements in conferences, Plaintiff states that it did not
believe it needed to conduct discovery in order to respond to
the instant motion because the only issues presented would be
(1) the legal issue of which standard applied to determine when
the statute of limitations began to run and (2) the fact issue
of when HMH’s infringements occurred and that had it known that
Defendants intended to move to dismiss claims on the ground that
HMH did not exceed certain license limits, Plaintiff would have
pursued discovery on that issue.
(Pl.’s R. 56.1 Resp. ¶¶ 84-85,
88.)
Plaintiff first sent HMH document requests seeking
licensing files and communications in May 2010, as well as an
interrogatory asking for the total number of copies it printed
of textbooks containing Muench’s photographs.
(Id. ¶ 89.)
Thereafter, on September 28, 2012, the same day Defendants filed
the instant motion, HMH for the first time produced the print
quantity documents on which it relies in arguing it did not
exceed the print quantity limits in certain of Muench’s
licenses.
(Id. ¶ 90.)
HMH for the first time also produced
other licensing documents regarding the licenses in suit on this
same date.
(Id. ¶ 91.)
HMH has produced multiple editions of certain books bearing
a single title, but HMH has not supplied print run quantities
8
for all such books.
Rather, for at least one series of books
(the “Pair It Books”), HMH only supplied print run quantities
for textbooks with a copyright year of 2003 and a Teacher’s
Edition with a copyright year of 2006 but has not supplied print
quantities for other known and relevant editions.
(See id. ¶¶
94-95.)
Additionally, the print quantity documents contain
unexplained codes and do not appear to include all of HMH’s uses
of Muench’s photographs.
For example, some of the print
quantities only include products produced by vendors located in
Asia, where Muench’s licenses limited distribution to North
America.
(Id.
¶ 100.)
Plaintiff has not taken depositions of HMH employees who
compiled the print quantity documents since their disclosure on
September 28, 2012.
(Id. ¶ 101.)
Furthermore, HMH has not
produced correspondence with Corbis.
II.
(Id. ¶ 103.)
STANDARD OF REVIEW
In considering a motion for summary judgment, the Court
resolves all ambiguities and draws all reasonable inferences
against the moving party.
Lindsay v. Ass’n of Prof’l Flight
Attendants, 581 F.3d 47, 50 (2d Cir. 2009).
“Summary judgment
is appropriate only ‘if the movant shows that there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.’”
9
Kwan v. Schlein, 634
F.3d 224, 228 (2d Cir. 2011) (quoting Fed. R. Civ. P. 56(a));
see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986);
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).
“An issue of fact is genuine if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.
A fact is material if it might affect the outcome of the suit
under the governing law.”
Lindsay, 581 F.3d at 50.
“The
inquiry performed is the threshold inquiry of determining
whether there is the need for a trial — whether, in other words,
there are any genuine factual issues that properly can be
resolved only by a finder of fact because they may reasonably be
resolved in favor of either party.”
Liberty Lobby, 477 U.S. at
250.
Rule 56 mandates summary judgment “against a party who
fails to make a showing sufficient to establish the existence of
an element essential to that party's case, and on which that
party will bear the burden of proof at trial.”
U.S. at 322.
Celotex, 477
“[T]here is no issue for trial unless there is
sufficient evidence favoring the nonmoving party for a jury to
return a verdict for that party.
If the evidence is merely
colorable or is not significantly probative, summary judgment
may be granted.”
Liberty Lobby, 477 U.S. at 249-50 (internal
citations omitted).
In the face of insufficient evidence,
“there can be ‘no genuine issue as to any material fact,’ since
10
a complete failure of proof concerning an essential element of
the nonmoving party’s case necessarily renders all other facts
immaterial.”
Celotex, 477 U.S. at 322-23.
III. ANALYSIS
At the outset, the Court notes that Plaintiff does not
oppose Defendant’s motion with respect to six claims where HMH
did not own the products published or where the image was not
used in a particular product.
(See Pl.’s Response to Defs.’
Second Mot. for Partial Summ. J. [dkt. no. 103] (“Pl.’s Opp’n”),
at 6.
Although Plaintiff offers to voluntarily dismiss these
claims, such an action is improper at this stage of the
proceedings.
See Fed. R. Civ. Proc. 41.
Therefore, the Court
grants summary judgments in favor of Defendants on the claims
set forth in Lines 239, 253, 267, 284, 378, and 434 of
Exhibit A.
The Court now considers the remaining issues as to why
Defendants assert summary judgment is appropriate at this stage.
A.
Statute of Limitations
The parties agree that the principal question of law at
issue with respect to whether certain of Plaintiff’s claims are
time-barred is when a copyright infringement claim accrues under
the three-year statute of limitations in the Copyright Act, 17
U.S.C. § 507(b).
11
The Copyright Act states that “[n]o civil action shall be
maintained under this title unless it is commenced within three
years after the claim accrued.”
Id.
At issue is whether
Congress intended courts to apply the injury rule or the
discovery rule when determining when an infringement claim
accrues.
Defendants urge that Congress intended the former, and
Plaintiff urges the latter.
Prior to the Supreme Court’s decision in TRW v. Andrews,
534 U.S. 19 (2001), courts in this Circuit applied the discovery
rule in copyright infringement cases.
Indeed, the Court of
Appeals seemed to have instructed as much through its holdings
in Stone v. Williams, 970 F.2d 1043, 1048 (2d Cir. 1992), and
Merchant v. Levy, 92 F.3d 51, 56 (2d Cir. 1996).
TRW, however,
has prompted courts in this Circuit to reexamine whether Stone
and Merchant continue to govern the issue of when a copyright
infringement claim accrues.
For example, in Auscape
International v. National Geographic Society, Judge Kaplan found
that the Court of Appeals had never explicitly addressed whether
the discovery rule or injury rule governs infringement claims
and that, in the wake of TRW, an examination of the statutory
structure and legislative history of Copyright Act was necessary
to determine which rule should apply.
47 (S.D.N.Y. 2004).
409 F. Supp. 2d 235, 241-
Upon such an examination, Judge Kaplan
concluded that Congress had intended for the injury rule to
12
govern the limitations period with respect to infringement
claims.
Id. at 247.
Since Auscape, the prevailing trend among the courts in
this Circuit has been to reject application of the discovery
rule in favor of the injury rule.
See, e.g., Urbont v. Sony
Music Entm’t Corp., 863 F. Supp. 2d 279, 282 (S.D.N.Y. 2012);
Bill Diodato Photography LLC v. Avon Prods., Inc., No. 12 Civ.
847 (RWS), 2012 WL 3240428, at *3 (S.D.N.Y. Aug. 7, 2012);
Harris v. Simon & Schuster, Inc. 646 F. Supp. 2d 622, 630
(S.D.N.Y. 2009); Broadvision Inc. v. Gen. Elec. Co., No. 08 Civ.
1478 (WHP), 2009 WL 1392059, at *6 (S.D.N.Y. May 5, 2009).
But
see Psihoyos v. John Wiley & Sons, Inc., No. 11 Civ. 1416 (JSR),
2011 WL 4916299, at *5 (S.D.N.Y. Oct. 14, 2011); Newsome v.
Brown, No. 01 Civ. 2807 (TPG), 2005 WL 627639, at *5 (S.D.N.Y.
Mar. 16, 2005).
Plaintiff, however, asserts that this trend is
the product of a too expansive interpretation of TRW and that
district courts remain obligated to follow the rule set forth in
Merchant and Stone.
Plaintiff supports this contention in part by drawing the
Court’s attention to Parks v. ABC, Inc., 341 Fed. Appx. 737,
738-39 (2d Cir. 2009) (summary order).
Plaintiff characterizes
Parks as a case involving both copyright ownership and
infringement claims where the Court of Appeals applied the
discovery rule to both types of claims.
13
(See Pl.’s Opp’n, at
9.)
But Plaintiff’s characterization of Parks as
straightforward in this regard is generous at best.
While the Parks court stated that “[a] cause of action
accrues when the plaintiff knows or has reason to know of the
injury upon which the claim is premised,” id. at 738 (citing
Merchant and Stone), this Court interprets such a statement as
limited to the context of the ownership claims the Parks court
was discussing in the paragraph in which that sentence appears.
A review of the prior proceedings in Parks reflects the fact
that while Parks was clearly an ownership dispute, the court
construed the plaintiff’s claims as possibly also asserting
infringement claims in light of her pro se status.
See Parks,
No. 06 Civ. 1364 (DAB)(GWG), 2007 WL 4800666, at *8-9 (S.D.N.Y.
Feb. 16, 2007) (Report & Recommendation), adopted as modified by
No. 06 Civ. 1364 (DAB), 2008 WL 205205, at *1 (S.D.N.Y. Jan. 24,
2008).
Indeed, the paragraph following the court’s discussion
of the plaintiff’s ownership claims, the Court of Appeals
states:
To
the
extent
that
Parks's
complaint
can
be
characterized as asserting that appellees infringed on
her copyrights, we also agree with the district court
that her claims are time barred.
Every act of
infringement is a “distinct harm” that gives rise to
an independent claim for relief.
[The defendant]
could not have been responsible for any infringement
that occurred within three years of the filing of this
lawsuit, because it sold its interest in the disputed
songs in 1979.
14
Id. at 739 (emphasis added) (citations omitted).
As such, not
only is it clear that the principal issue in Parks involved
allegations surrounding ownership of certain copyrights, but had
the Court of Appeals intended to use Parks to reaffirm that the
discovery rule governs the limitations period over infringement
claims, the court surely would have chosen less ambiguous
language than “any infringement within three years of the filing
of this lawsuit.”
At minimum, such language leaves the question
open as to which rule governs in this Circuit after TRW.
Taken
literally, though, such language appears to indicate that courts
should apply the injury rule in the context of infringement
claims.
Having reviewed parties’ arguments and the relevant case
law, this Court finds persuasive Judge Kaplan’s thorough
examination and reasoning in Auscape, as well as the analysis of
the other courts applying the injury rule, and joins what is now
the majority approach in this jurisdiction in adopting the
injury rule for the purposes of evaluating whether copyright
infringement claims are time barred.2
2
It follows that upon
As Justice Scalia points out in his concurring opinion in TRW,
“[o]ther than [the Supreme Court’s] historical exception for
suits based on fraud, [the Supreme Court has] deviated from the
traditional rule and imputed an injury-discovery rule to
Congress on only one occasion.” TRW, 534 U.S. at 37 (Scalia, J.
concurring) (citation omitted). Even assuming the plaintiff
here was presented with a situation in which the alleged
(cont’d)
15
application of the injury rule, summary judgment is appropriate
in favor of Defendants on statute of limitations grounds for one
claim set forth on Line 227 of Exhibit A because no printing of
this image occurred after March 23, 2006, and for ten claims set
forth on Lines 16, 18, 19, 37, 72, 88, 155, 181 218, and 256
with respect to any printings that occurred prior to March 23,
2006.
Additionally, with respect to Line 77 of Exhibit A, the
Court holds that, although this claim was not alleged in the
FAC, it arises out of the same conduct set out in the Original
Complaint and properly relates back pursuant to Federal Rule of
Civil Procedure 15(c)(1)(B) because Defendants received adequate
notice of this matter “within the statute of limitations by the
general fact situation alleged in the Original Complaint,” see
Slayton v. Am. Exp. Co., 460 F.3d 215, 228 (2d Cir. 2006)3; thus,
(cont’d from prev. page)
infringement was latent, it does not follow that copyright
infringement claims “cry out” for application of a discovery
rule. At their heart, copyright infringement claims involve
open publication, and the Court holds that just because one
purported victim of such infringement may have “ha[d] no
knowledge of his right to sue, or of the facts out of which his
right arises, [such] does not postpone the period of
limitation,” and is insufficient to merit an across-the-board
discovery rule for infringement claims under the Copyright Act.
See id.
3
Given the pleadings in the Original Complaint set forth in
¶¶ 15 through 17 along with the consistency of Plaintiff’s legal
theories between each respective claim, the Court is not
convinced that the claim set forth in Line 77 of Exhibit A
asserts a new, distinct set of operative facts simply because
each individual license for use of an image may represent a
(cont’d)
16
summary judgment is appropriate on statute of limitations
grounds for the claim set forth on Line 77 only with respect to
any printings that occurred prior to March 23, 2006.
B.
Defendants’ Motion for Summary Judgment on Additional
Grounds
Consistent with Defendants’ representations to this Court
and to Plaintiff, the Court issued a Scheduling Order and
subsequent amendments thereto “for Defendants’ motion for
summary judgment on statute of limitations grounds.”
(Scheduling Order [dkt. no. 90]; see also [dkt. nos. 91, 95].)
It is the Court’s recollection with respect to a teleconference
the Court held with the parties on or about April 11, 2012,
prior to issuing the April 13, 2012, Scheduling Order, Plaintiff
made its position clear that it believed additional discovery
would be necessary before briefing any motion for summary
judgment in which the scope exceeded the statute of limitations
issue.
The Court then instructed the parties that no additional
discovery was required before Defendants’ motion for summary
judgment on the statute of limitations issue.
As far as the
Court can tell, Defendants’ only allusion to the fact that its
moving papers may exceed this scope is a statement it made in
(cont’d from prev. page)
separate business transaction and consist of separate documents,
(Defs.’ Reply in Support of their Mot. for Partial Summ. J.
[dkt. no. 104], at 1 n.1).
17
its undocketed August 31, 2012, letter to the Court regarding
the appropriateness of filing certain information under seal
that “the purpose of Defendants’ Summary Judgment Motion is to
identify those claims that are time-barred or otherwise not
viable on their face.”
Considering (1) the Court’s instructions
to the parties regarding the appropriateness of conducting
further discovery in light of the limited scope of the instant
motion, (2) Plaintiff’s long-stated interest in pursuing
discovery prior to any motion purporting to seek summary
judgment on additional grounds, (3) Plaintiff’s representations
that it did not pursue further discovery as a result of the
Court’s instruction and Defendant’s representations regarding
the scope of the instant motion, and (4) Plaintiff’s
representation that it at least needs to depose HMH employees
responsible for producing the print quantity documents in order
to evaluate the degree to which potential factual
inconsistencies to which it directs the Court in its brief may
result in discovering the existence of a genuine issue of
material fact as to whether HMH exceeded the licensed print runs
for these uses, the Court denies as premature Defendants’ effort
essentially to blindside Plaintiff with a motion for summary
judgment on additional grounds.
The parties shall appear for a
conference as set forth below to discuss the appropriate scope
of any additional discovery that may be needed.
18
IV.
CONCLUSION
Defendants’ motion for partial summary judgment is GRANTED
in part and DENIED in part.
The Court grants summary judgment
in favor of Defendants on the claims set forth in Lines 239,
253, 267, 284, 378, and 434 of Exhibit A.
The Court further
grants summary judgment in favor of Defendants on statute of
limitations grounds with respect to the printing of any images
at issue in this suit that occurred prior to March 23, 2006.
Finally, the Court denies as premature the remainder of
Defendants’ motion for summary judgment.
The parties shall confer and inform the Court by letter no
later than September 9, 2013, as to how they wish to proceed.
SO ORDERED:
Dated:
New York, New York
August 21, 2013
_________________________________
LORETTA A. PRESKA
Chief United States District Judge
19
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