Brownmark Films, LLC v. Paramount Pictures Corporation et al

Filing 43

ORDER signed by Judge J P Stadtmueller on 9/27/11 as follows: denying 39 plaintiff's Motion to Strike; granting 40 plaintiff's Motion for an Order setting a briefing schedule - defendants Initial Brief in Support of Their Objections to the Declaration of Caz McChrystal and Robert Ciraldo shall not exceed 10 pages and shall be submitted by 10/14/11, plaintiffs Response Brief shall not exceed 10 pages and shall be submitted by 11/4/11, and defendants Reply Brief shall not exceed 5 pages and shall be submitted by 11/18/11; the plaintiff's sur-reply brief 41 shall be disregarded from the Courts' consideration in reaching a decision on the issues of attorney fees and costs. (cc: all counsel)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
BROWNMARK FILMS LLC,
Plaintiff,
v.

Case No. 10-CV-1013-JPS

COMEDY PARTNERS,
MTV NETWORKS,
PARAMOUNT PICTURES
CORPORATION,
SOUTH PARK DIGITAL STUDIOS
LLC, and
VIACOM INTERNATIONAL INC.

ORDER

Defendants.

On August 23, 2011, Brownmark Films filed three documents. The first
is an expedited motion to: (1) disregard the defendants’ August 17, 2011
Reply; (2) disregard the Reply’s accompanying Objections to Evidence
Submitted in Opposition to Defendants’ Motion to Recover Attorneys’ Fees
and Costs; and (3) strike the Reply’s accompanying Declaration of Jeff
Glasser. (Pl.’s Exp. Mot. to Disregard Def.’s Reply, Objections, and
Declaration, 1). In this Expedited Motion to Disregard, Brownmark objects
to the defendants’ submissions as being untimely filed under Local Rule
54(a)(3). (Id., at 1–2).
The second of Brownmark’s filings is an expedited motion requesting
that the Court set a briefing schedule in regard to defendants’ evidentiary
objections (which Brownmark also challenged as untimely in its Expedited
Motion to Disregard, as noted above). (Pl.’s Exp. Mot. to Set Br. Sched., 1). In
support of its request for a briefing schedule, Brownmark argues that the
defendants’ objections are too general. (Id.). Thus, Brownmark asks the Court

to set an entirely separate briefing schedule “such that Defendant[s] may
enlighten Plaintiff and this Court as to the substance of its objections and
Plaintiff may provide on-point responses to such objections without merely
guessing at defendants’ argument.” (Id., at 2).
The last of Brownmark’s August 23, 2011 filings is a “Reply to
[defendants’] Response.” (Docket #41). In fact, this document appears to be
a sur-reply to the defendants’ response, which the Court did not request and
which Brownmark did not seek leave to file. Unlike the first and second of
Brownmark’s August 23, 2011 submissions, this “Reply” does not make any
objections to the defendants’ filings. Instead, it makes a substantive argument
against the defendants’ claim for fees and costs. (See Pl.’s Reply to Resp.,
2–13).
By their August 30, 2011 submission, the defendants have responded
to all three of Brownmark’s filings.
Having given due consideration to the parties’ submissions, the Court
will deny Brownmark’s Motion to Disregard, grant Brownmark’s Motion to
Set a Briefing Schedule, and will disregard Brownmark’s sur-reply. The
Court will decide the issue of attorney fees and costs after the parties have
had a chance to brief the Court on issues relating to defendants’ evidentiary
objections.
I.

Brownmark’s Motion to Disregard Defendants’ Response and
Objections to Evidence and to Strike the Declaration of Jeff Glasser
Brownmark argues that the Court should disregard the defendants’

Reply in Support of Motion to Recover Attorneys’ Fees and Costs and its
accompanying documents. Brownmark argues that the defendants’ Reply
was untimely filed under Civil Local Rule 54(a)(3), which states that cost-

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claimants “must serve any response within 7 days of service of the
objections.” (Emphasis added.)
However, Local Rule 54 does not apply to briefs that relate to an
award of attorney fees and costs. Local Rule 54 applies only to the procedure
for a bill of costs – not to motions seeking attorneys fees, such as the
defendants’ motion in this case. The Court agrees with the defendants’
assessment of this issue: Federal Rule 54(d)(2) governs all claims for attorney
fees and related nontaxable expenses. That Rule requires that such claims be
made by motion, unless they must be proved at trial. Id. In copyright cases,
prevailing defendants do not have to prove their fees at trial. See 17 U.S.C.
§ 505.
Thus, in order to request attorney fees and costs, the defendants were
required to do so by motion. Being appropriately made by motion – and not
as a bill of costs, as Brownmark suggests – the defendants’ request is subject
to the briefing schedule set forth in Local Rule 7. That briefing schedule
requires that a movant’s reply be made within fourteen days of the filing of
the non-movant’s response. Civ. L.R. 7(c). Defendants timely filed their
Reply within fourteen days of Brownmark’s Response.
Therefore, the defendants complied with Federal and Local Rules in
filing their Reply and accompanying Objections and Declaration. The Court
denies Brownmark’s request, and will not disregard the defendants’ Reply
brief, Objections to Evidence, or the Declaration of Jeff Glasser.
II.

Brownmark’s Request to Set a Briefing Schedule in Regard to
Defendants’ Objections to Evidence
Brownmark has also requested, by motion, that the Court set a

briefing schedule in reference to the defendants’ Objections to Evidence. The
Court will do so.
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While the Court is somewhat reluctant to request further briefing in
a case that is as flush with filings as this one, the Court agrees with
Brownmark that additional briefing is warranted to address the defendants’
evidentiary objections. The defendants have made several objections to the
Declarations of Caz McChrystal and Robert Ciraldo, most of which are rather
conclusory statements such as “Improper Legal Conclusion,” followed by a
string citation of supporting cases.
To help the Court make an informed decision on the defendants’
objections, it requests that the parties file short briefs on the issue. The Court
invites the defendants to file the first brief of not more than 10 pages,
clarifying its objections to the McChrystal and Ciraldo Declarations.
Brownmark may follow with a response of not more than 10 pages. To the
extent that they deem necessary, defendants may then file a reply of not
more than 5 pages.
III.

Brownmark’s Sur-Reply
Parties typically cannot submit unauthorized sur-reply briefs. The

Federal Rules of Civil Procedure do not provide for the filing of a sur-reply
by any party. Similarly, Civil Local Rule 7 authorizes parties to file only
three types of legal memoranda relating to motions: the original brief
supporting a motion; the non-moving party’s response; and the moving
party’s reply. See Civ. L. R. 7. However, Local Rule 7(I) does set forth two
situations in which a party may file a document such as a sur-reply: first,
when a court authorizes its filing; and, second, when it is accompanied by a
motion requesting leave to file it.
Brownmark’s sur-reply does not fit in either of those two categories;
as such, it is an impermissible filing, and the Court will ignore it in reaching
a decision on fees and costs. No matter how Brownmark has titled its “Reply
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to Cost-Claimants’ Response . . . ”, they cannot hide that the document is, in
fact, a sur-reply. This Court did not authorize such an additional filing by
Brownmark, and Brownmark did not submit an accompanying motion
requesting leave to file it.
Further, given the volume of filings by Brownmark relating to the
issue of fees and costs, the Court does not feel obliged to make an exception
to the Local Rules. The Local and Federal Rules authorize contestants of
attorney fees and costs to file only a Response; thus, in contesting the
defendants’ claim to fees and costs, Brownmark should have anticipated that
its Response would be the only brief it would be allowed to submit, and
accordingly made its case adequately in that brief.
Because Brownmark’s sur-reply is not authorized by the Local or
Federal rules, was not authorized by the Court, and was not accompanied by
a motion requesting leave to file, the Court will not consider sur-reply (titled
“Reply to Cost-Claimants’ Response . . . ”) in deciding the fees and costs
issue. See, e.g., Zahurance v. Valley Packaging Indus., 2010 U.S. Dist. LEXIS
24333, *14 (E.D. Wis. March 16, 2010), Tran v. Kriz, 2009 U.S. Dist. LEXIS
118076, at 11–12 (E.D. Wis. Dec. 18, 2009)(citing Civil L.R. 7.1(c), (f); Civil L.R.
56.2(b), (c), (d)), Coe v. Milwaukee County, 2007 U.S. Dist. LEXIS 49499, *3 (E.D.
Wis. July 6, 2007).
Accordingly,
IT IS ORDERED that the plaintiff’s “Expedited Non-Dispositive
Motion to Disregard Cost-Claimants’ Response and Objections to Evidence
and to Strike the Declaration of Jeff Glasser” (Docket #39) be and the same is
hereby DENIED; and

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IT IS FURTHER ORDERED that the plaintiff’s “Expedited NonDispositive Motion to Set a Briefing Schedule in Regard to Defendants’
Objections to Evidence” (Docket #40) be and the same is hereby GRANTED;
IT IS FURTHER ORDERED that the parties, in accordance with the
order granting plaintiff’s request for a briefing schedule, shall submit to the
Court their briefs in accordance with the following guidelines:
(1)

Defendants’ Initial Brief in Support of Their Objections to the
Declaration of Caz McChrystal (Docket #37-1) and Robert
Ciraldo (Docket #37-2), shall not exceed Ten (10) Pages, and
shall be submitted by Friday, October 14, 2011; and

(2)

Plaintiff’s Response Brief shall not exceed Ten (10) Pages, and
shall be submitted by Friday, November 4, 2011; and

(3)

Defendants’ Reply Brief shall not exceed Five (5) Pages, and
shall be submitted by Friday, November 18, 2011; and

IT IS FURTHER ORDERED that plaintiff’s sur-reply brief (also titled
“Plaintiff’s Reply to Cost-Claimants’ Response in Support of Motion to
Recover Attorneys’ Fees and Costs”) (Docket #41) shall be DISREGARDED
from the Courts’ consideration in reaching a decision on the issues of
attorney fees and costs.
Dated at Milwaukee, Wisconsin, this 27th day of September, 2011.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

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