Capitol Records, LLC v. Redigi Inc.
Filing
325
REPLY MEMORANDUM OF LAW in Support re: 319 MOTION for Attorney Fees . . Document filed by Capitol Christian Music Group, Inc., Capitol Records, LLC, Virgin Records IR Holdings, Inc.. (Mandel, Richard)
Case 1:12-cv-00095-RJS Document 325 Filed 04/22/19 Page 1 of 4
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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CAPITOL RECORDS, LLC, CAPITOL
CHRISTIAN MUSIC GROUP, INC. and
VIRGIN RECORDS IR HOLDINGS, INC.,
12 Civ. 0095 (RJS)
Plaintiffs,
-againstREDIGI INC., JOHN OSSENMACHER and
LARRY RUDOLPH a/k/a LA WREN CE S.
ROGEL,
Defendants.
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PLAINTIFFS' REPLY MEMORANDUM OF LAW IN
SUPPORT OF MOTION FOR ATTORNEYS' FEES
COWAN, LIEBOWITZ & LATMAN, P.C.
114 West 4ih Street
New York, New York 10036-6799
(212) 790-9200
Attorneys for Plaintiffs Capitol Records, LLC,
Christian Music Group, Inc. and Virgin Records IR
Holdings, Inc.
29503/003/2931404. l
Case 1:12-cv-00095-RJS Document 325 Filed 04/22/19 Page 2 of 4
Plaintiffs Capitol Records, LLC, Capitol Christian Music Group, Inc. and Virgin Records
IR Holdings, Inc. (collectively, "Plaintiffs") respectfully submit this reply memorandum in
further support of their motion for attorneys' fees under Section 505 of the Copyright Act, 17
U.S.C. § 505.
Defendant ReDigi Inc. ("ReDigi"), which is no longer represented by counsel in the postappeal District Court proceedings, submitted no response to Plaintiffs' motion. Defendants
Ossenmacher and Rogel, appearing prose, submitted letters in which they requested that the
Court stay any further proceedings with respect to Plaintiffs' fee application until the Second
Circuit ruling is "final" and beyond any further appeal. However, because the Second Circuit has
issued its mandate, its order is already final under Fed. R. App. P. 41 (c). See 1998 Adv.
Committee Notes to Fed. R. App. P. 41(c) ("A court of appeals' judgment or order is not final
until issuance of the mandate; at that time the parties' obligations become fixed."). Defendants
never sought to stay the Second Circuit's mandate pending a petition for certiorari pursuant to
Fed. R. App. P. 41 (d), and thus should not now be permitted to treat the Second Circuit's ruling
as something less than final just because they may seek Supreme Court review.
In any event, the finality of the underlying proceedings is irrelevant to a motion for
attorneys' fees, which is collateral to the decision on the merits and can thus proceed irrespective
of any further appellate proceedings. See Tancredi v. Metro. Life Ins. Co., 378 F.3d 220, 225 (2d
Cir. 2004) ("notwithstanding a pending appeal, a district court retains residual jurisdiction over
collateral matters, including claims for attorneys' fees"). Thus, if Defendants truly believed "that
there are significant shortcomings and infirmities in the arguments and evidence that Plaintiffs
have submitted with their motion for fees," as Mr. Ossenmacher claims in his letter (Docket No.
324), then now was the time to come forward with such arguments. Instead, Defendants seek to
29503/003/293 1404.1
Case 1:12-cv-00095-RJS Document 325 Filed 04/22/19 Page 3 of 4
reserve the right to make such unspecified arguments at some later time "even if Plaintiffs do
ultimately prevail in the case." Id. The reality is that Plaintiffs have already prevailed in the
case, and the District Court's summary judgment ruling has been unanimously affirmed.
Because Defendants have failed to offer any substantive arguments in response to Plaintiffs' fees
motion, the Court should grant the motion for the reasons set forth in detail in Plaintiffs' moving
papers.
CONCLUSION
For the foregoing reasons and those set forth in Plaintiffs' moving papers, Plaintiffs'
motion for an award of attorneys' fees should be granted.
Dated: New York, New York
April 22, 2019
Respectfully submitted,
By~::#-
COWAN, LIEBOWITZ & LATMAN, P.C.
Jonathan Z. King
114 West 4 ?1h Street
New York, New York 10036
(212) 790-9200
Attorneys for Plaintiffs Capitol Records, LLC,
Christian Music Group, Inc. and Virgin Records IR
Holdings, Inc.
2
29503/003/2931404. l
Case 1:12-cv-00095-RJS Document 325 Filed 04/22/19 Page 4 of 4
CERTIFICATE OF SERVICE
I hereby certify that on April 22, 2019, I caused a true and correct copy of the foregoing
Plaintiffs' Reply Memorandum of Law in Support of Motion for Attorneys' Fees to be served on
Defendants John Ossenmacher and Lawrence Rogel by first class mail, postage prepaid,
addressed as follows :
John Ossenmacher
102 NE 2nd Street, No. 261
Boca Raton, FL 33432
Lawrence Rogel
115 Stedman St.
Brookline, MA 02446
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Richard S. Mandel
29503/003/2931404. I
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