Edwyna W. Brooks v. Dash et al

Filing 109

MEMORANDUM ORDER denying 106 Motion for Permanent Injunction; denying 107 Motion for Sanctions: Both requests for sanctions are denied. While Brooks' motion for contempt is utterly without merit, it is not "utterly lacking in support. " In Re Highgate Equities, Ltd., 279 F.3d 148, 155-56 (2d Cir. 2002). And, given that Brooks' motion is lacking in merit, the Court sees no reason to sanction defendants for seeking sanctions. The Clerk of the Court is directed to close the entries at docket numbers 106 and 107. (Signed by Judge Jed S. Rakoff on 1/7/2021) (jwh)

Case 1:19-cv-01944-JSR Document 109 Filed 01/07/21 Page 1 of 6

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
----------------------------------- x
:
EDWYNA W. BROOKS d/b/a EW BROOKS
:
BOOKS, LLC,
:
:
:
Plaintiff,
:
:
-v:
:
DAMON ANTHONY DASH and POPPINGTON
:
LLC d/b/a DAMON DASH STUDIOS,
:
:
Defendants.
----------------------------------- x

19-cv-1944 (JSR)
MEMORANDUM ORDER

JED S. RAKOFF, U.S.D.J.
Before the Court is the motion of plaintiff Edwyna W. Brooks
d/b/a EW Brooks Books LLC (“Brooks”) seeking to hold defendants Damon
Anthony Dash (“Dash”) and Poppington LLC d/b/a Dame Dash Studios
(“Poppington”) in contempt for violating a permanent injunction
issued by this Court on April 14, 2020. Dkt. No. 106. Also before
the Court is the cross-motion of defendants seeking sanctions in
connection with Brooks’ contempt motion. Dkt. No. 107. For the
reasons set forth below, both motions are denied.
I.

Background
By

way

of

brief

background,

this

copyright

and

trademark

infringement action concerns the film Mafietta, which is adapted
from a book series of the same name. See Findings of Fact and
Conclusions of Law dated April 14, 2020, Dkt. No. 71, at 1. Brooks

Case 1:19-cv-01944-JSR Document 109 Filed 01/07/21 Page 2 of 6

is the author of the Mafietta book series, and defendant Dash is a
movie and music producer and the Chief Executive Officer of defendant
Poppington. Id. In July 2015,

Brooks

and

Dash started

working

together to produce a film version of Mafietta, but the relationship
fell apart and Brooks paid for the film’s production herself. Id.
at 1, 5. In 2019, after defendants started marketing and selling the
film without Brooks’ consent, she brought the instant action. On
April 13, 2020, following a bench trial, the Court issued findings
of fact and conclusions of law granting judgment in favor of Brooks
on her copyright infringement claim, awarding Brooks $300,000 in
total

damages,

and

issuing

a

permanent

injunction

prohibiting

defendants from “marketing, advertising, promoting, distributing,
selling, or copying the film without Brooks’ consent.” Id. at 2021.1
Twelve days after the injunction issued, non-party Raquel Horn
registered a still photograph from the production of Mafietta with
the United States Copyright Office. See Dkt. No. 106-2. Horn, who
is a member of Poppington, worked on the set of Mafietta, where she
allegedly

took

the

now-registered

photograph.

See

Motion

for

Contempt (“Pl. Mem.”), Dkt. No. 106, at 2. She has since allegedly

The Court granted summary judgment in favor of Brooks with
respect to her trademark infringement claims before trial. Dkt.
No. 50.
1

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Case 1:19-cv-01944-JSR Document 109 Filed 01/07/21 Page 3 of 6

assigned the photograph to Poppington. Id. at 3. Brooks now seeks
to hold Dash and Poppington in contempt and also seeks “the return
of all photographs or intellectual property in the possession of
Poppington or Horn that relates to the production of Mafietta.” Id.
Meanwhile, the photograph in question appears on the cover of
one of Brooks’ books. See Dkt. No. 107-1. Believing that she is the
rightful owner of the photograph, Horn sued Brooks for copyright
infringement on October 15, 2020, and that action is currently
pending in this District before Judge Nathan. See Poppington LLC,
et al. v. Edwyna Brooks, et al., Dkt. No. 20-cv-8616.
II.

Discussion
A. Brooks’ Motion for Contempt
“[A]

district

court’s

contempt

power

is

narrowly

circumscribed.” Gucci America, Inc. v. Weixing Li, 768 F.3d 122,
142 (2d Cir. 2014). To warrant contempt, the moving party must
show “that (1) the order the contemnor failed to comply with is
clear and unambiguous, (2) the proof of noncompliance is clear and
convincing, and (3) the contemnor has not diligently attempted to
comply in a reasonable manner.” Id. “The longstanding, salutary
rule in contempt cases is that ambiguities and omissions in orders
redound to the benefit of the person charged with contempt.” Id.
at 143. Here, Brooks seeks to hold Dash and Poppington in contempt
for violating the Court’s injunction that prohibits them from

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“marketing,

advertising,

promoting,

distributing,

selling,

or

copying the film without Brooks’ consent.”
There are at least two defects in Brooks’ motion. The first
is that Horn -- who registered the photograph -- is not a party to
this action and is not bound by the Court’s injunction. Brooks
seems to assume that because Horn is a member of Poppington, her
actions

could

be

imputed

both

to

Dash,

the

other

member

of

Poppington, and to Poppington itself. Brooks, however, offers no
support for this proposition, and the Court will not find either
defendant in contempt for the actions of Horn. The second defect
is

that

the

“marketing,

Court’s

injunction

advertising,

forbids

promoting,

the

defendants

distributing,

from

selling,

or

copying the film.” Brooks suggests that, under copyright law, the
photograph is derivative of the film and therefore belongs to her.
The merits of that contention will presumably be addressed in the
copyright action pending before Judge Nathan. For the purposes of
this contempt motion, however, the Court finds that the injunction
does not clearly and unambiguously cover photographs that were
taken in connection with the film. Brooks’ motion is therefore
denied.
B. Defendants’ Motion for Sanctions
Defendants ask not only that the Court deny Brooks’ motion, but
also that the Court impose sanctions on her and her counsel for

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bringing it. Declaration of Natraj S. Bhushan (“Bhushan Decl.”),
Dkt. No. 107, at 6. Specifically, defendants request that the Court
award $1,200 in attorneys’ fees incurred in connection with this
motion, representing four hours of work at a billable hourly rate
of $300. Id. at 7.
Under Federal Rule of Civil Procedure 11, a court may impose
sanctions on an attorney for “among other things, misrepresenting
facts or making frivolous legal arguments. Muhammad v. Walmart Stores
East, L.P., 732 F.3d 104, 108 (2d Cir. 2013) (per curiam). Where,
as here, opposing counsel initiates sanctions proceedings, “opposing
counsel must serve a notice of the sanctions claim on the accused
attorney 21 days before moving for sanctions to give an opportunity
to correct the asserted misconduct.”

Id. “For sanctions issued

pursuant to a motion by opposing counsel, courts have long held that
an attorney could be sanctioned for conduct that was objectively
unreasonable.” Id.
In addition, 28 U.S.C. § 1927 allows a court to require an
attorney “who so multiplies the proceedings in any case unreasonably
and vexatiously . . . to satisfy personally the excess costs,
expenses, and attorneys’ fees reasonably incurred because of such
conduct.” “To impose sanctions under [§ 1927], a court must find
clear evidence that (1) the offending party’s claims were entirely
without color, and (2) the claims were brought in bad faith -- that
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Case 1:19-cv-01944-JSR Document 109 Filed 01/07/21 Page 6 of 6

is, motivated by improper purposes such as harassment or delay.”
Huebner v. Midland Credit Management, Inc., 897 F.3d 42, 55 (2d Cir.
2018). “A court may infer bad faith when a party undertakes frivolous
actions that are completely without merit.” Id. (internal quotation
marks omitted).
In opposing defendants’ motion, Brooks correctly points out
that defendants have not followed Rule 11’s 21-day safe harbor
provision. Reply Memorandum for Contempt, Dkt. No. 108, at 5-6. She
also insists that her contempt motion was, in any event, brought in
good faith and with factual support. Id. at 6. And she asks the
Court to sanction defendants for their “frivolous” sanctions motion.
Id.
Both requests for sanctions are denied. While Brooks’ motion
for contempt is utterly without merit, it is not “utterly lacking
in support.” In Re Highgate Equities, Ltd., 279 F.3d 148, 155-56 (2d
Cir. 2002). And, given that Brooks’ motion is lacking in merit, the
Court sees no reason to sanction defendants for seeking sanctions.
The Clerk of the Court is directed to close the entries at
docket numbers 106 and 107.
SO ORDERED.
Dated:

New York, NY
January 7, 2021

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