16 Casa Duse, LLC v. Merkin et al

Filing 159

ORDER re: 157 MOTION to Amend/Correct 156 Order on Motion for Attorney Fees, . filed by 16 Casa Duse, LLC. IT IS HEREBY ORDERED THAT Casa Duse's motion is GRANTED in PART and DENIED in part, and that the Court's Ju ne 20 Order (Doc. No. 156) is VACATED. The Court will issue an amended decision removing the contested reference to the corporate defendant. The Clerk of the Court is respectfully directed to terminate the motion pending at docket entry 157. SO ORDERED. (Signed by Judge Richard J. Sullivan, Sitting by Designation on 6/23/20) (yv) Modified on 6/23/2020 (yv).

Case 1:12-cv-03492-RJS Document 159 Filed 06/23/20 Page 1 of 4

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

16 CASA DUSE, LLC,
Plaintiff,
-v-

No. 12-cv-3492 (RJS)
ORDER

ALEX MERKIN, et al.,
Defendants.
RICHARD J. SULLIVAN, Circuit Judge:
On October 26, 2018, the Second Circuit vacated the Court’s denial of Plaintiff 16 Casa
Duse LLC’s (“Casa Duse”) renewed motion for attorney’s fees and costs under section 505 of the
Copyright Act and sanctions under 28 U.S.C. § 1927, and remanded for further proceedings. 16
Casa Duse LLC v. Merkin, 740 F. App’x. 223 (2d Cir. 2018). In light of the Circuit’s ruling, the
Court issued an order on June 1, 2020 denying Casa Duse’s renewed motion for attorneys’ fees
and costs (the “June 2020 Order”). (Doc. No. 156.) Now before the Court is a motion from Casa
Duse seeking reconsideration of the June 2020 Order. (Doc. No. 157.) For the reasons set forth
below, Casa Duse’s motion is granted in part and denied in part.
A motion for reconsideration pursuant to Local Civil Rule 6.3 “will generally be denied
unless the moving party can point to controlling decisions or data that the court overlooked –
matters, in other words, that might reasonably be expected to alter the conclusion reached by the
court.” Shrader v. CSX Transp., Inc., 70 F.3d 255, 256–57 (2d Cir. 1995). “Alternatively, a motion
for reconsideration may be granted to ‘correct a clear error or prevent manifest injustice.’” Banco
de Seguros Del Estado v. Mut. Marine Offices, Inc., 230 F. Supp. 2d 427, 428 (S.D.N.Y. 2002)
(quoting Griffin Indus., Inc. v. Petroiam, Ltd., 72 F. Supp. 2d 365, 368 (S.D.N.Y. 1999)). A motion

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for reconsideration “may not be used to advance new facts, issues[,] or arguments not previously
presented to the Court, nor may it be used as a vehicle for re-litigating issues already decided by
the Court.” Am. ORT, Inc. v. ORT Israel, No. 07-cv-2332 (RJS), 2009 WL 233950, at *3 (S.D.N.Y.
Jan. 22, 2009) (internal quotation marks omitted); accord Kahala Corp. v. Holtzman, No. 10-cv4259 (DLC), 2011 WL 1118679, at *1 (S.D.N.Y. Mar. 24, 2011) (citing Nat’l Union Fire Ins. Co.
of Pittsburgh v. Stroh Cos., Inc., 265 F.3d 97, 115 (2d Cir. 2001)).
Although Casa Duse submitted its motion for reconsideration after the fourteen-day period
provided by Local Civil Rule 6.3, the Court will nonetheless consider it on the merits. Casa Duse
makes two principal arguments regarding reconsideration. First, Casa Duse contends that the June
2020 Order erroneously states that Casa Duse has a judgment against the corporate defendant, and
requests that, “[t]o the extent that the Court’s exercise of its discretion in equity was affected by
the understanding that some relief may have existed,” the Court should reconsider its decision.
(Doc. No. 157 at 1.) Because Casa Duse is correct that there is no judgment against the corporate
defendant, the June 2020 Order is hereby VACATED, and an amended order will be issued
removing any reference to a judgment against the corporate defendant. However, because the
Court’s decision to deny Casa Duse’s request for fees was unaffected by the erroneous reference
to the corporate defendant, the Court declines to reconsider the denial of costs and fees on that
basis. For the reasons articulated in the June 2020 Order, and to avoid any possible confusion, the
Court reaffirms its prior ruling that an award of costs is not warranted in this matter.
Second, Casa Duse argues that the Court failed to recognize “that the basis for the motion
for fees was not simply about motion practice or the many frivolous counterclaims and defenses
Casa Duse had to fend off,” but instead included Merkin’s improper desire to engage in litigation
based on his belief in his “moral rights,” his belated adoption of his “separate copyright theory,”

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and his desire to have the Court “legislate copyright law through a series of advisory opinions and
otherwise throwing everything at the wall to see what stuck.” (Id. at 1–2.) But whether or not
these factors are truly distinct from Merkin’s “frivolous litigation positions and motion practice,”
which were undeniably the heart of Casa Duse’s motion for fees (see Doc. No. 143 at 8–9), the
fact remains that none of this constitutes “new data” that the Court overlooked, Shrader, 70 F.3d
at 256–57 (2d Cir. 1995). Simply put, the Court has repeatedly assessed Merkin’s motivation and
his actions, and has concluded that these do not merit an award of fees and costs in light of the
Second Circuit’s pronouncements regarding the reasonableness of Merkin’s litigation positions.
Accordingly, the Court declines Casa Duse’s invitation to “re-litigat[e] issues already decided by
the Court.” Am. ORT, Inc., 2009 WL 233950, at *3.
Finally, to the extent Casa Duse suggests that the Court misapplied the relevant legal
standard, Casa Duse is mistaken. Specifically, Casa Duse contends in a footnote that (1) “the
Supreme Court in Kirtsaeng [v. John Wiley & Sons, Inc., 136 S. Ct. 1879 (2016),] did not indicate
that the precedent under the ‘compensation and deterrence’ factor out of the Second Circuit was
abrogated,” and (2) “[t]he [Second Circuit’s] suggestion that some award may well be proper
reflects that the Court’s discretion is not contained to analogies to the facts of any particular case
or two.” (Doc. No. 157 at 1 n.2.) But the June 2020 Order never suggested that Kirtsaeng
abrogated all existing Second Circuit case law regarding the “compensation and deterrence” factor
set out in Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994). Instead, it looked to Kirtsaeng – which
the Circuit specifically highlighted on appeal, see 16 Casa Duse, 740 F. App’x at 225 – and the
cases cited therein for guidance on when fee-shifting is appropriate even if a party’s claims are not
unreasonable.

In doing so, the Court explicitly “recognize[d] that the two cases [cited in

Kirtsaeng] do not reflect the full spectrum of conduct that may justify an award of fees under the

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fourth Fogerty factor,” compensation and deterrence. (Doc. No. 156 at 7.) In short, the Court did
not misapprehend its discretion or misconstrue its authority to impose an award of fees. It simply
declined to do so based on the particular facts of this case. Accordingly, Casa Duse’s arguments
are without merit.
For the reasons set forth above, IT IS HEREBY ORDERED THAT Casa Duse’s motion is
GRANTED in PART and DENIED in part, and that the Court’s June 20 Order (Doc. No. 156) is
VACATED. The Court will issue an amended decision removing the contested reference to the
corporate defendant. The Clerk of the Court is respectfully directed to terminate the motion
pending at docket entry 157.
SO ORDERED.
Dated:

June 23, 2020
New York, New York
____________________________________
RICHARD J. SULLIVAN
UNITED STATES CIRCUIT JUDGE
Sitting by Designation

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