Mantel v. Microsoft Corporation et al

Filing 91

MEMORANDUM OPINION AND ORDER re: 85 MOTION for Reconsideration re; 83 Memorandum & Opinion, . filed by John Mantel. For the above reasons, Plaintif's motion for reconsideration is DENIED. This resolves docket numbers 85 and 87. SO ORDERED. (Signed by Judge Alison J. Nathan on 1/30/2019) (kv)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

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J~N 3 O?.m~
John Mantel,
Plaintiff,
16-cv-5277 (AJN)

-vMicrosoft Corporation et al.,

MEMORANDUM
OPINION AND ORDER

Defendants.

ALISON J. NA THAN, District Judge:
Plaintiff John Mantel brought claims under the Copyright Act and Digital Millennium
Copyright Act, alleging that one of his photographs was used without authorization. On March
29, 2018, the Court issued a Memorandum Opinion and Order granting summary judgment to
Defendants. Order, Dkt. No. 83. Now before the Comi is Plaintiffs motion for reconsideration
of the Court's order. Dkt. No. 85. For the reasons set forth below, Plaintiffs motion is denied in
its entirety.
I.

Background

The Comi assumes familiarity with this matter, the factual background of which is more
fully described in this Court's March 29 order. Order at 1-4.
II.

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Legal Standard

"A motion for reconsideration should be granted only when the [moving party] identifies
an intervening change of controlling law, the availability of new evidence, or the need to correct
a clear error or prevent manifest injustice." Kole! Beth Yechiel Mechil o/Tartikov, Inc. v. YLL
Irrevocable Tr., 729 F.3d 99, 104 (2d Cir. 2013) (internal quotation marks omitted). This
standard is exigent because "reconsideration of a previous order is an extraordinary remedy to be
employed sparingly in the interests of finality and conservation of scarce judicial resources." In

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re Health Mgmt. Sys., Inc. Sec. Litig., 113 F. Supp. 2d 613, 614 (S.D.N.Y. 2001) (internal
quotation marks omitted).

III.

Discussion
Plaintiff challenges the Court's decision on a number of grounds. The Court will first

address challenges to its decision to exclude evidence Plaintiff provided in support of his motion
for summary judgment. The Court will then address Plaintiffs other arguments.

A.

The Court Properly Excluded Plaintiff's Declaration as a Sanction for
Plaintiff's Conduct During Discovery

In its March 29 Order, the Comi excluded evidence Plaintiff put forward to support his
claim that he held a valid copyright to the photograph in question: (1) a sentence in Plaintiffs
sworn declaration stating that he "caused a copy of the Subject Photograph to be deposited with
the U.S. Copyright Office as part of my application bearing service request #1-3653740711,
dated June 16, 2016, ... and (2) a copy of the copyright registration application that Mantel sent
to the U.S. Copyright Office[.]" Order at 6 (citations omitted). The Court concluded that
because neither of these documents, nor the information within, had been turned over to
Defendants during discovery-and because the Court explicitly told the parties that they could
not supplement the record with late discovery-Plaintiff could not use them to supplement the
factual record on a motion for summary judgment. Id. at 6-8. The Court therefore excluded the
sentence quoted above from Plaintiffs declaration and the copy of the copyright registration
application. Plaintiff objects to these sanctions on several grounds, none of which are sufficient
to meet the high bar for a motion for reconsideration.
Plaintiff first objects that the Comi overlooked that he had fully and timely disclosed his
testimony during discovery. The sole basis for Plaintiffs claim is the fact that in his Initial
Disclosures he identified himself as a witness with "knowledge regarding," infer alia, "the
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registration of the copyrighted work at issue." Pl. Mot., Dkt. 86, at 5-6. As an initial matter,
Plaintiff did not raise this argument in his briefing on the parties' cross-motions for summary
judgment. See Pl. Summ. Judg. Rep., Dkt. 74, at 7-9. This in itself is sufficient to warrant
denying this argument. See, e.g., Liberty lvledia Corp. v. Vivendi Universal, SA., 861 F. Supp.
2d 262,265 (S.D.N.Y. 2012) ("A motion for reconsideration is not an 'opp01iunity for making
new arguments that could have been previously advanced[.]"' (quoting Associated Press v.

United States Dep 't of Defense, 395 F.Supp.2d 17, 19 (S.D.N.Y.2005)). Moreover, the Court
excluded the evidence because neither the documents nor the infonnation within had been
produced in discovery. Plaintiff is incorrect that his initial disclosure warrants reconsidering the
Court's conclusion that the excluded information was not produced in discovery; stating in the
broadest terms that Plaintiff has "knowledge regarding" a copyright's registration is simply not
the same thing as declaring that he caused the specific photograph to be deposited as paii of a
specific application.
Even if Plaintiff's Initial Disclosures had provided notice of the excluded information in
his declaration in a general way, excluding it would have still been an appropriate sanction for
Plaintiff's behavior during discovery. "A federal district court possesses broad inherent power to
impose sanctions in response to abusive litigation practices, thereby ensuring the proper
administration of justice." Winn v. Associated Press, 903 F. Supp. 575, 581 (S.D.N.Y. 1995),

aff'd, 104 F.3d 350 (2d Cir. 1996). In this case, the Court, considering and balancing the factors
provided by the Second Circuit in Design Strategy, Inc. v. Davis, 469 F.3d 284, 296 (2d Cir.
2006), concluded that it was necessary to impose discovery sanctions based on Plaintiff's failure
to provide an explanation for not producing any documents during discovery, apparent
gamesmanship, disregard for the rules and this Court's express admonition, and significant
prejudice to Defendants. Order at 6-8. And as Defendants point out, allowing Plaintiff to submit
via declaration the evidence that he withheld during discovery would allow him an end-run
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around the Court's sanctions. Plaintiff provides no persuasive justification for reconsidering this
decision, much less reasons that could meet the high standard on a motion for reconsideration.
Plaintiff next contends that the Court's exclusion of his testimony was improper because
a Court must credit a non-movant' s testimony at the summary judgment stage. Pl. Mot. at 7-13.
That of course is true, yet none of the cases cited by Plaintiff stand for the proposition that a
Comi may never exclude certain testimony at the summary judgment stage as sanction for
discovery misconduct. Def. Mot. Opp. at 9-10. Instead, these cases merely stand for the welltravelled assertion that a Court should not make credibility determinations or ignore
uncontroverted testimony that is part of the record. Id. In addition, courts regularly make
evidentiary rulings at the summary judgment stage and do not rely on evidence they exclude.
See, e.g., Raskin v. Wyatt Co., 125 F.3d 55, 66-67 (2d Cir. 1997). Thus, the Court rejects that
argument as orthogonal to its prior decision.
Plaintiff further argues that the Court overlooked his objections to producing a certified
deposit from the U.S. Copyright Office, which would purportedly justify his failure to produce
this evidence during discovery. Pl. Mot. at 14-16. Plaintiff also raises this argument for the first
time in his motion for reconsideration, which is itself grounds for denying it. See Liberty ~Media
Corp., 861 F. Supp. 2d at 265. As to the merits of this argument, Plaintiffs discovery objections
would not have justified his failing to produce the evidence that the Court excluded: his
testimony and a copy of his copyright application fo1m. Defendants requested "all documents"
relating to Plaintiffs allegation that the photograph in question was part of the relevant
registered copyright and "all communications between Plaintiff, or anyone acting on Plaintiffs
behalf, and the Copyright Office regarding the Photograph[.]" Order at 2-3. Plaintiff provided
no documents in response, objecting that he would not produce documents that were
"inconsistent with obligations imposed by the copyright act," "not in his possession, custody, or
control," or which were "contained in public records or otherwise in the public domain and/or
accessible to all parties." Pl. Mot. at 14-15. As an initial matter, these vague, general objections
to producing any discovery at all lacked the requisite specificity. See Fischer v. Forrest, No.

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14CIV1304 (PAE), 2017 WL 773694, at* 1 (S.D.N.Y. Feb. 28, 2017). Beyond that, Plaintiff
does not even argue that these objections would have justified withholding the information and
documents that the Court excluded-focusing instead on whether he could be compelled to
produce certified deposits, which would require paying a fee. Pl. Mot. at 14-16. Nor does
Plaintiff explain how his claim during discovery that no communications existed between
himself or anyone acting on his behalf and the Copyright Office regarding the photograph in
question is consistent with the evidence he sought to produce after discovery ended. Def. Mem.
Opp. at 18. Finally, the Court's sanctions were also based on misconduct beyond just the initial
failure to disclose evidence, including Plaintiff's reliance on unproduced evidence even after the
Court's clear admonition that late efforts to produce discovery would not be tolerated. Order at
7. Plaintiff's initial objections to discovery therefore fall far short ofrequiring reconsideration of
the Court's decision.
Plaintiff further argues that because Defendants did not raise the issue of striking his
testimony in their summary judgment briefing, he should have been given a greater opportunity
to contest that argument. Pl. Mot. Rep. at 8-9. It is certainly true that "[nJo sanction should be
imposed without giving the disobedient party notice of the particular sanction sought and an
opp01iunity to be heard in opposition to its imposition." S.E.C. v. Razmilovic, 738 F.3d 14, 24
(2d Cir. 2013), as amended (Nov. 26, 2013). Yet the Second Circuit has noted that "in the Rule
37 context, [it has] declined to impose rigid requirements on either the timing or the form of the
notice afforded to a sanctioned pmiy" and has found that a single day of notice and the ability to
be heard in writing can be sufficient. Reilly v. Natwest Markets Grp. Inc., 181 F.3d 253, 270 (2d
Cir. 1999). Here, Plaintiff had more than sufficient notice and opportunity to dispute
Defendants' request for sanctions in the briefing on the parties' cross-motions for summary
judgment. Defendants' lead argument in their briefing in support of their motion for summary
judgment explicitly argued that because Plaintiff "chose not to participate in discovery" and then
"moved for partial summary judgment on the basis of documents and information that were
never produced or disclosed in the course of fact discovery[,]" Plaintiff had engaged in

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"prejudicial litigation by ambush" that warranted "preclusion of all evidence that Mantel failed
to produce in discovery." Def. Mot. Summ. Judg., Dkt. 70, at 6. Defendants repeatedly made
clear that they sought preclusion of "any evidence to establish the merits of [Plaintiffs] claim,"
"any documentary evidence that Mantel did not produce during the course of fact discovery[,]"

and "all documentary evidence submitted in support of his Motion[.]" Id. at 8-9, 13, and 14
(emphases added). Plaintiff contested these arguments in his reply. Pl. Summ. Judg. Rep. at 7-9.
Beyond that, the reasons for partially excluding Plaintiffs testimony are nearly identical to those
for excluding the registration application-and even Plaintiff does not deny that he had sufficient
opportunity to address those arguments. See Funk v. Belneftekhim, 861 F.3d 354, 369-70 (2d
Cir. 2017) (finding that notice was sufficient even when a Comi did not warn a party of the
specific sanction it imposed, because "for purposes of notice" there is "little 'practical difference"
between similar remedies when the party had notice of the reasons for the sanctions and the
general result of the sanctions). Finally, well before he moved for summary judgment, Plaintiff
was on notice from the Cami's admonition at a hearing that his efforts to subvert the discovery
schedule set by the Court would not be allowed. Order at 7. Therefore, the Court finds that
Plaintiff had sufficient notice and opportunity to contest the partial exclusion of his testimony.
Finally, Plaintiff argues that because the Court excluded the evidence, it had improperly
decided this case on "technical grounds" instead of on the merits. Pl. Mot. at 21-22. This
argument is meritless. A preference for deciding cases on the merits informs but does not
foreclose the Court's authority to sanction parties under the Federal Rules, nor its inherent
authority to impose sanctions, see Chambers v. NASCO, Inc., 501 U.S. 32, 43-46 (1991). The
Court's sanctions here were a permissible exercise of its authority, taken after considering the
factors provided by the Second Circuit in Design Strategy, 469 F.3d at 296.
Because the Court properly excluded the evidence, it is unnecessary to reach the question
of whether, had it not been excluded in part, Plaintiffs Declaration was sufficient in and of itself
to survive summary judgment. Pl. Mot. at 12-13, 14; Pl. Mot. Rep. at 7-8.

B.

Plaintiff's Further Arguments Are Meritless
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Lastly, Plaintiff asserts that the Court's Order failed to place the burden of showing the
invalidity of his copyrights on Defendants. Pl. Mot. at 16-20. Yet as the Court already
explained in the Order itself, these arguments about the registration's validity are irrelevant.
Order at 8-9. The Comi did not find that the registration at issue was invalid, but rather that
Plaintiff failed to provide any actual evidence that would show that the photograph in question
was part of that registration.
Plaintiffs argument that the Court should vacate its Order to allow Defendants to obtain
a certified deposit copy from the U.S. Copyright Office is similarly meritless. Plaintiff cites no
authority in support of this procedure, which would entirely undermine the Court's sanction on
Plaintiff, placing the burden on Defendants to produce evidence that Plaintiff withheld in the first
place.

IV.

Conclusion
For the above reasons, Plaintiffs motion for reconsideration is DENIED. This resolves

docket numbers 85 and 87.
SO ORDERED.

"JO ,

Dated: January
2019
New York, New York
United States District Judge

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