Frye v. Lagorstrum et al

Filing 260

MEMORANDUM AND ORDER: denying 256 Motion for Attorney Fees. Under the circumstances, an award of additional attorney's motion for additional attorneys' fees is Denied. This Memorandum and Order resolves ECF Docket Entry No. 256. SO ORDERED. (Signed by Judge Naomi Reice Buchwald on 3/23/2020) Copies Mailed By Chambers. (ama)

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

Pending before the Court is plaintiff Joseph Frye’s motion
for attorneys’ fees.

The Court detailed the background of this

case in its Memorandum and Order of December 23, 2019, granting
plaintiff’s renewed motion for summary judgment.
251.

The

states

Court

here

assumes

only

familiarity

those

facts

2017,

the

with

necessary

See ECF No.

this

decision

to

resolve

a

Memorandum

and
this

application.
On

August

31,

Court

issued

and

Order, granting, inter alia, plaintiff Joseph Frye’s motion for
summary judgment on his copyright infringement and breach of
contract claims
Inc.

against

See ECF No. 214.

defendants

Lagerstrom

and

Dianacollv,

On June 27, 2018, the Court issued

another Memorandum and Order, awarding plaintiff, inter alia,
$21,450 in attorneys’ fees under 17 U.S.C. § 505.
226.

See ECF No.

A final judgment for plaintiff was entered on June 28,

2018, see ECF No. 227, and defendant Lagerstrom appealed.
ECF No. 230.

See

On appeal, the Second Circuit vacated the Court’s

grant of plaintiff’s motion for summary judgment on the ground
that defendant Lagerstrom had not been properly advised of his
obligation,

in

responding

counter-affidavits

or

to

other

plaintiff’s

documentary

motion,

evidence

to
as

present
to

every

genuine issue of material fact that he wished to preserve for
trial: often called a “Vital notice.”

Frye v. Lagerstrom, 778

F. App’x 13, 15 (2d Cir. 2019).
Shortly after this case was remanded, the Court issued an
Order directing plaintiff Frye to refile his motion for summary
judgment.

See ECF No. 241.

To cure the defect identified by

the Second Circuit, the Court enclosed in that Order a “Notice
to Pro Se Litigant Who Opposes a Motion for Summary Judgment”
and the full texts of Federal Rule of Civil Procedure 56 and
Local Civil Rule 56.1, and mailed the Order to defendant.
at 3-9.

Id.

Plaintiff filed a renewed motion for summary judgment

on October 11, 2019, see ECF No. 246, which the Court granted in
its Memorandum and Order of December 23, 2019.

See ECF No. 251.

Having reached the same result and having previously addressed
the issue of appropriate relief, the Court directed the Clerk of
Court

to

entered,

enter
id.

at

a

judgment
9,

which

identical
included

attorneys’ fees.

2

to

an

the

award

one
of

previously
$21,450

in

Defendant Lagerstrom filed a notice of appeal on December
30, 2019, see ECF No. 253, and his appeal is currently pending
before the Second Circuit.

Thereafter, on February 3, 2020,

plaintiff filed this motion for additional attorneys’ fees in
excess of the amount previously awarded by the Court.
No. 256.

See ECF

Although the filing of a notice of appeal “confers

jurisdiction on the court of appeals and divests the district
court of its control over those aspects of the case involved in
the appeal,” Griggs v. Provident Consumer Disc. Co., 459 U.S.
56, 58 (1982), “notwithstanding a pending appeal, a district
court

retains

residual

jurisdiction

over

including claims for attorneys’ fees.”

collateral

matters,

Tancredi v. Metropolitan

Life Ins. Co., 378 F.3d 220, 225 (2d Cir. 2004).

Therefore, the

Court has jurisdiction over this motion.
As discussed above, a renewed motion for summary judgment
was necessary in this action because defendant Lagerstrom had
not been provided with a Vital notice by plaintiff’s counsel
when plaintiff filed his initial motion for summary judgment as
he was required to do by the Local Civil Rule 56.2 of this
District, which in relevant part, provides that:
Any represented party moving for summary
judgment against a party proceeding pro se
shall serve and file as a separate document,
together with the papers in support of the
motion, the following “Notice To Pro Se
Litigant Who Opposes a Motion For Summary
Judgment” with the full texts of Fed. R.

3

Attorney for Plaintiff
Danny Jiminian, Esq.
Jiminian Law PLLC

Defendant (pro se)
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. 6B
New York, NY 10025

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