Frye v. Lagorstrum et al

Filing 237

MEMORANDUM AND ORDER: denying 229 Motion to Stay. For the foregoing reasons, the defendant's motion for a stay of the execution of the judgment pending his appeal without the posting of a bond is denied. SO ORDERED. (Signed by Judge Naomi Reice Buchwald on 10/10/2018) Copies Mailed By Chambers. (ama)

Case 1:15-cv-05348-NRB Document 237 Filed 10/10/18 Page 1 of 11

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
----------------------------------------X
JOSEPH FRYE,
Plaintiff,
MEMORANDUM AND ORDER

- against -

15 Civ. 5348 (NRB)

BENJAMIN F. LAGERSTROM, a.k.a
BENJAMIN IRISH, and DIANACOLLV, INC.,
Defendants.
----------------------------------------X
NAOMI REICE BUCHWALD
UNITED STATES DISTRICT JUDGE
I.
On

August

31,

INTRODUCTION

2017,

this

Court

granted,

inter

alia,

plaintiff Joseph Frye’s motion for summary judgment on liability
against the defendant Benjamin Lagerstrom.
No. 214.
addressing

Mem. and Order, ECF

The Court subsequently issued its Memorandum and Order
relief,

granting,

in

part,

both equitable and monetary relief.
2018, ECF No. 226.

plaintiff’s

motion

for

Mem. and Order, June 27,

Judgment in the amount of $33,371.98 was

entered, and the Court permanently enjoined defendant from “from
infringing [plaintiff]'s copyright in ‘Homeless’” and ordered
defendant “to forthwith destroy all copies of all ‘Homeless’
footage in his possession or control.”
2018, ECF No. 227.

On July 20, 2018, the defendant filed a

notice of appeal from that judgment.
230.

Judgment, June 28,

Notice of Appeal, ECF No.

Presently before the Court is the defendant’s motion for a

Case 1:15-cv-05348-NRB Document 237 Filed 10/10/18 Page 2 of 11

stay of the execution of the judgment pending his appeal without
the posting of a bond.

Def.’s Mot. for Stay of Execution of J.

Pending Appeal (“Def.’s Mot.”), July 9, 2018, ECF No. 229.

For

the following reasons, we deny the defendant’s motion.
II.

DISCUSSION

A party moving for a stay of the execution of a judgment
pending appeal must do so pursuant to Rule 62 of the Federal
Rules of Civil Procedure (“FRCP”).1
62,

read

in

its

entirety,

Fed. R. Civ. P. 62.

reflects

the

federal

“Rule

policy

of

providing a judgment creditor with security during the pendency
of an appeal.”

FDIC v. Ann-High Assocs., No. 97-6095, 1997 WL

1877195, at *2 (2d Cir. Dec. 2, 1997).

Motions to stay the

execution of judgments for injunctive relief are governed by
subsection (c), which states that a court “may suspend, modify,
restore, or grant an injunction on terms for bond or other terms
that

secure

62(c).

the

opposing

party's

rights.”

Fed.

R.

Civ.

P.

A stay pending appeal for a judgment granting injunctive

relief is “not a matter of right,” but rather “an exercise of
judicial

discretion,”

and

“[t]he

propriety

of

its

issue

dependent upon the circumstances of the particular case.”

1

is

Nken

Defendant moved for a stay “pursuant to Rule 8 of The Federal Rules of
Appellate Procedure.”
Def.’s Mot. 1, ECF No. 229.
Because Rule 8 of the
Federal Rules of Appellate Procedure does not apply to motions for stay filed
in this Court, we will construe defendant’s motion under the applicable
subsections of FRCP Rule 62.
See Whitehaven S.F., LLC v. Spangler, No. 13
Civ. 8476 (ER), 2014 WL 5510860, at *1 n.2 (S.D.N.Y. Oct. 31, 2014).

2

Case 1:15-cv-05348-NRB Document 237 Filed 10/10/18 Page 3 of 11

v.

Holder,

556

U.S.

418,

433

(2009)

(quoting

Virginian

R.

Co., 272 U.S. 658, 672-673 (1926)).
Subsection (d) applies where a movant seeks to stay the
execution of a money judgment and allows an appellant to obtain
a stay by posting a court-approved supersedeas bond.
Civ. P. 62(d).

Fed. R.

Courts in the Second Circuit may exercise their

discretion and modify or waive Rule 62(d)’s supersedeas bond
requirement “if the appellant provides acceptable alternative
means of securing the judgment.”

In re Nassau Cty. Strip Search

Cases, 783 F.3d 414, 417 (2d Cir. 2015) (citation omitted).
While courts may therefore issue discretionary stays under
either

subsection,

consider
differ

when
in

the

assessing

important

factors

that

motions

respects

courts

made

pursuant

from

the

in

this
to

factors

Circuit

Rule
that

62(c)
courts

consider when determining motions made pursuant to Rule 62(d).
In

their

briefing,

the

parties

conflate

these

two

distinct

analytical frameworks, addressing the defendant’s motion solely
under the test applicable to Rule 62(c) motions.

Because the

parties’ approach is inconsistent with Second Circuit precedent
and the FRCP, the Court will construe the defendant’s request
for a stay under Rule 62(c) insofar as it relates to the portion
of the judgment granting injunctive relief and under Rule 62(d)
insofar as it relates to the money judgment.

3

Case 1:15-cv-05348-NRB Document 237 Filed 10/10/18 Page 4 of 11

A. Judgment Granting Injunctive Relief
We consider the following factors in determining whether to
issue a stay pending appeal pursuant to Rule 62(c): “(1) whether
the stay applicant has made a strong showing that he is likely
to succeed on the merits; (2) whether the applicant will be
irreparably injured absent a stay; (3) whether issuance of the
stay will substantially injure the other parties interested in
the proceeding; and (4) where the public interest lies.”

SEC v.

Citigroup Glob. Markets Inc., 673 F.3d 158, 162 (2d Cir. 2012).
Of these factors, the first two “are the most critical.”
Nken,

556

U.S.

at

434–35.

While

the

requisite

degree

of

likelihood of success under this test “var[ies] according to the
court’s assessment of the other [stay] factors,” Mohammed v.
Reno, 309 F.3d 95, 101 (2d Cir. 2002)
and

citation

omitted),

demonstrating

(internal quotation marks
a

mere

possibility

of

success, or that an appellant’s chances on appeal are “better
than

negligible,”

is

insufficient.

Nken,

556

U.S.

at

434.

Similarly, with respect to the second factor, “simply showing
some possibility of irreparable injury” is insufficient.

Id. at

434–435 (internal quotation marks and citation omitted).
Here, the Court finds the defendant’s likelihood of success
on appeal to be exceedingly remote.

Despite the defendant’s

contentions that this case “has never been about [plaintiff]’s
copyright,” Def.’s Reply to Pl.’s Opp. Mot. (“Def.’s Reply”) 5,

4

Case 1:15-cv-05348-NRB Document 237 Filed 10/10/18 Page 5 of 11

Aug. 17, 2018, ECF No. 236, it has, in fact, always been about
the plaintiff’s copyright, and the defendant has admitted that
he created and published videos comprised in part of footage
from the filming of the plaintiff’s copyrighted material.
and Order 8, ECF No. 214.

Mem.

In an effort to justify his admitted

use of plaintiff’s copyrighted material, the defendant largely
rehashes unconvincing and implausible arguments that this Court
has already rejected – most notably that the First Amendment
permits the defendant to use the footage at issue, and that
plaintiff has been engaged in a sweeping conspiracy to defraud
and falsely imprison the defendant.
reiterates

that

copyright

laws

do

Id. at 8–10.
not

violate

The Court
the

First

Amendment, see Eldred v. Ashcroft, 537 U.S. 186, 219-21 (2003),
and the defendant has not established any of the elements of a
“fair use” defense.

Mem. and Order 9, ECF No. 214.

Further,

there is no support for the notion that plaintiff is engaged in
a conspiracy to harm the defendant.

Defendant’s arguments are

as unpersuasive in support of his motion to stay as they were in
opposition to plaintiff’s motion for summary judgment.2

2

We decline to consider defendant’s stated intention to introduce new
evidence and arguments on appeal, as “an appellate court will not consider an
issue raised for the first time on appeal.” See Ironshore Specialty Ins. Co.
v. Eidos Partners, LLC, No. 13 Civ. 8434 (KBF), 2014 WL 3405029, at *2
(S.D.N.Y.
July
7,
2014)
(quoting
Conrpagnie
Noga
D’Importation
Et
D’Exportation S.A. v. Russian Fed’n, 350 F. App’x 476, 477 (2d Cir. 2009));
see also Fed. R. App. P. 10(a).

5

Case 1:15-cv-05348-NRB Document 237 Filed 10/10/18 Page 6 of 11

The Court also finds that the defendant has failed to make
the requisite showing of irreparable injury.

Defendant claims

that the injunctive relief at issue would “have the effect of
forcing a defendant to cease or substantially curtail its normal
operations and would restrain his/her speech.”
14, ECF No. 229.
cannot

complain

Mot. to Stay.

However, “it is axiomatic that an infringer
about

infringing product."

the

loss

of

ability

to

offer

its

WPIX, Inc. v. ivi, Inc., 691 F. 3d 275,

287 (2d Cir. 2012) (quoting WPIX, Inc. v. ivi, Inc., 765 F.
Supp.
above,

2d

594,

the

621

(S.D.N.Y.

defendant’s

2011)).

consistent

Further,

violations

of

as

discussed

plaintiff’s

copyright are not examples of speech protected by the First
Amendment.

See also Universal City Studios, Inc. v. Reimerdes,

82 F. Supp. 2d 211, 220 (S.D.N.Y. 2000) (preliminarily enjoining
defendants
defendants’

from

facilitating

objections

that

copyright
they

were

infringement
engaged

in

despite
protected

speech); Salinger v. Colting, 607 F.3d 68, 81 (2d Cir. 2010)
(“[D]efendant [to a copyright suit] has a core First Amendment
interest in the freedom to express him or herself, so long as

We also note that while the Circuit will ultimately determine whether
to accept defendant’s repeated assertions that he is entitled to a de novo
review of this Court’s factual findings, the possibility that the Circuit may
review the facts of this case anew does not alter the Court’s conclusion that
defendant’s chances on appeal are slim.

6

Case 1:15-cv-05348-NRB Document 237 Filed 10/10/18 Page 7 of 11

that expression does not infringe the plaintiff’s copyright.”)
(emphasis added).
Because

the

“most

critical

factors”

militate

against

granting the defendant’s motion, the Court could conclude its
analysis here.

However, we will add that the final two factors

-- whether the issuance of a stay will substantially injure the
other parties interested in the proceeding, and wherein lies the
public interest -- also counsel against granting the defendant’s
motion to stay.

Both the plaintiff and the public have an

obvious and genuine interest in preventing the defendant from
using

plaintiff’s

Copyright Act.

copyrighted

material

in

violation

of

the

See U2 Home Entm’t, Inc. v. Lai Ying Music &

Video Trading, Inc., No. 04 Civ. 1233 (MHD), 2007 WL 747794, at
*2 (S.D.N.Y. Mar. 12, 2007).
For

these

reasons,

defendant’s

motion

relating

to

the

stay

the

Court’s judgment granting injunctive relief is denied.
B. Money Judgment
Rule

62(d)

applies

where

the

movant

seeks

to

execution of money judgments pending appeal, and provides that
“the appellant may obtain a stay by supersedeas bond.”

Fed. R.

Civ. P. 62(d); see Butler v. Ross, 2017 WL 6210843 (DLC), at *2
(S.D.N.Y. Dec. 7, 2017).

The purpose of Rule 62(d) is to ensure

that the party prevailing recovers in full while also protecting
the appellant from the risk that payment of the judgment cannot

7

Case 1:15-cv-05348-NRB Document 237 Filed 10/10/18 Page 8 of 11

be recouped if the decision is ultimately reversed.

See Nassau

Cty., 783 F.3d at 417; see also Moore v. Navillus Tile, Inc.,
No. 14 Civ. 8326 (CM), 2017 WL 4326537, at *1 (S.D.N.Y. Sept.
28, 2017) (“Significantly, the bond requirement is not designed
to protect the judgment debtor's ability to continue in business
. . . .”).
Courts have discretion to waive or modify the supersedeas
bond requirement, but only where the court finds that there are
alternative means of securing the judgment for the prevailing
party.
Thomas,

Nassau
516

Cty.,

U.S.

349,

783
359

F.3d

at

(1996)

417;

see

(“[T]he

also

Rules

Peacock
require

v.
the

district court ensure that the judgment creditor’s position is
secured, ordinarily by a supersedeas bond.”).

In determining

whether to exercise their discretion under Rule 62(d), courts
consider the following non-exhaustive list of factors:
(1) the complexity of the collection process; (2) the
amount of time required to obtain a judgment after it
is affirmed on appeal; (3) the degree of confidence
that the district court has in the availability of
funds to pay the judgment; (4) whether the defendant's
ability to pay the judgment is so plain that the cost
of a bond would be a waste of money; and (5) whether
the defendant is in such a precarious financial
situation that the requirement to post a bond would
place other creditors of the defendant in an insecure
position.
Nassau Cty., 783 F.3d at 418 (finding that the newly announced
framework “more directly address[es] the primary purpose of Rule
62(d)” than the traditional stay factors used under Rule 62(c)).

8

Case 1:15-cv-05348-NRB Document 237 Filed 10/10/18 Page 9 of 11

Applying these factors, the court in Nassau County found
that “there [was] no practical reason to require [the appellant]
to

post

a

bond”

where

the

appellant

had

demonstrated

the

existence of the necessary funds and could pay the judgment
without delay or difficulty.

Id. at 418.

Unlike in Nassau

County, here the defendant avers that he is unable to pay the
$33,371.98 judgment in support of his motion for a stay.
Def.’s Mot. 16, 19, ECF No. 229.

See

The defendant’s concession is

determinative of the second, third, and fourth factors of the
Nassau County framework, and assures the Court that a “bond is
necessary to safeguard [plaintiff’s] recovery.”

John Wiley &

Sons, Inc., 2018 WL 3956508, at *27 (“In fact, a concession of
inability to pay is often ‘determinative’ in this inquiry.”);
Moore, 2017 WL 4326537, at *2.
made

any

showing

that,

in

Further, the defendant has not

the

unlikely

event

that

he

does

prevail on appeal, he will encounter difficulty recouping the
money judgment from the plaintiff.

The defendant’s conclusory

assertion that the judgment will affect the security of his
creditors does not alter this conclusion.

See John Wiley &

Sons, 2018 WL 3956508, at *28 (“And even if the fifth factor
favors

a

stay

without

bond,

it

does

not

outweigh

the

other

factors.”).
Because

the

defendant

fails

to

demonstrate

that

the

judgment in favor of the plaintiff would be adequately secured

9

Case 1:15-cv-05348-NRB Document 237 Filed 10/10/18 Page 10 of 11

absent

the

defendant's

posting
motion

monetary relief.

of
to

a

supersedeas

stay

the

bond,

execution

of

the

Court

denies

the

judgment

for

3

III. Conclusion

For

the

foregoing

reasons,

the

defendant's

motion

for

a

stay of the execution of the judgment pending his appeal without
the posting of a bond is denied.

SO ORDERED.

Dated:

New York, New York
October /0, 2018

~~~~

UNITED STATES DISTRICT JUDGE

In support of his motion, the defendant makes several references to the
absence of a Jury trial.
See, e.g., Def.'s Mot. 12, ECF No. 229; Def.'s
Reply 14, ECF No. 236. We appreciate that as a prose defendant Mr.
Lagerstrom does not understand that summary judgment can be issued where
there are no genuine disputes as to any material fact - even where a party
requests a jury trial in 1ts initial pleadings.
Fed. R. Civ. P. 56.
Moreover, we were quite forthright with the defendant in our letter of May
15, 2018, 1n which we proposed procedures for reviewing and deciding
plaintiff's motion for equitable and monetary relief and gave the defendant
an opportunity to obJect to the proposed procedure.
Letter, ECF No. 223.
Defendant failed to object, and as such waived any right he had to a jury
trial on the issue of damages.
See Gusler v. City of Long Beach, 715 F.
App'x 68, 69-70 (2d Cir. 2018) (summary order) (finding that a party waived
his right to a jury when he received adequate notice that the court was
making a finding of fact in a nonjury proceeding but failed to raise an
obJection).

10

Case 1:15-cv-05348-NRB Document 237 Filed 10/10/18 Page 11 of 11

Attorney for Plaintiff
Danny Jiminian, Esq.
Jiminian Law PLLC

Defendant (prose)

Benjamin F Lagerstrom

Copies of the foregoing Memorandum and Order have been mailed on
this date to the following:

Benjamin F. Lagerstrom
529 W. 29th Street PHD
New York, NY 10001
Benjamin F. Lagerstrom
201 W. 92nd Street Apt.
New York, NY 10025

6B

11