Getty Images vs Advernet: Complaint

8/3/2019 Getty Images vs Advernet: Complaint

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Case details

Court: nysd

Docket #: 1:09-cv-01895

Case Name: Getty Images (US), Inc. v. Advernet, Inc.

PACER case #: 341399

Date filed: 2009-03-02

Date terminated: 2011-06-30

Assigned to: Magistrate Judge Kevin Nathaniel Fox

Case Cause: 28:1338 Copyright Infringement

Nature of Suit: 820 CopyrightJury Demand: None

Jurisdiction: Federal Question

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2009-03-02 1 0

COMPLAINT

against Advernet,

Inc. (Filing Fee $

350.00, Receipt

Number

680080)Document

filed by Getty

Images (US),

Inc.(ama) (Entered:

03/04/2009)

2011-08-10

12:55:39982af7767dca46a33886507953c762f3cdb11a82

2009-03-02 2 0

RULE 7.1

CORPORATE

DISCLOSURE

STATEMENT. No

Corporate Parent.

Document filed by

Getty Images (US),

Inc.(ama) (Entered:

03/04/2009)

2009-03-16 3 0

SUMMONS

RETURNED

EXECUTED. Getty

Images (US), Inc.

served on 3/9/2009,

answer due3/30/2009. Service

was accepted by

Scott Ekster,

Registered Agent.

Document filed by

Getty Images (US),

Inc.. (Attachments:

# 1 Affidavit of

Service)(Aieta,

Mario) (Entered:

03/16/2009)

2009-04-23 4 0

NOTICE OF

APPEARANCE by

Oscar Michelen on

behalf of Advernet,

Inc. (Michelen,Oscar) (Entered:

04/23/2009)

2009-04-23 5 0

RULE 7.1

CORPORATE

DISCLOSURE

STATEMENT. No

Corporate Parent.

Document filed by

Advernet,

Inc..(Michelen,

Oscar) (Entered:

04/23/2009)

2009-04-23 6 0

MOTION to

Dismiss the

complaint for lack

docket: Getty Images (US), Inc. v. Advernet, Inc. http://ia600409.us.archive.org/10/items/gov.uscourts.nysd.34139

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of subject matter

jurisdiction and for

failure to state a

cause of action.

Document filed by

Advernet, Inc..

Return Date set for

5/19/2009 at 09:30

AM.(Michelen,

Oscar) (Entered:

04/23/2009)

2009-04-23 7 0

AFFIRMATION of

Oscar Michelen inSupport re: 6

MOTION to

Dismiss the

complaint for lack

of subject matter


failure to state a

cause of action..

Document filed by

Advernet, Inc..

(Attachments: # 1

Exhibit plaintiff's

complaint)

(Michelen, Oscar)

(Entered:

04/23/2009)

2009-04-23 8 0

MEMORANDUM

OF LAW in Support

re: 6 MOTION to

Dismiss the

complaint for lack

of subject matter


failure to state a

cause of action..

Document filed by

Advernet, Inc..

(Michelen, Oscar)

(Entered:

04/23/2009)

2009-05-12 9 0

STIPULATION; the

the return date for

dft. Advernet Inc.'smotion to dismiss

Complaint, is

adjourned from

5/19/09 to 5/26/09.

that the time for

plaintiffs to serve

their opposition

papers to

defendants' motion

is adjourned from

May 7, 2009 to May

14, 2009. (Signed

by Judge Deborah

A. Batts on 5/12/09)

(pl) (Entered:

05/13/2009)

2009-05-28 10 0

STIPULATION:

The return date for

defendant Advernet

Inc.'s Motion To

Dismiss Complaint

is adjourned from

June 9, 2009 to July

7, 2009. The time

for plaintiffs to

serve their

opposition papers to

defendants' motion

is adjourned from

May 28, 2009 to

June 25, 2009.


5 2/17/2012


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(Signed by Judge

Deborah A. Batts on

5/28/09) (db)

(Entered:

05/28/2009)

2009-07-06 11 0

STIPULATION

WITHDRAWING

EXTENDING

TIME TO

ANSWER; (1 )That

the time for the

defendant

ADVERNET, INC.f/k/a VR

MARKETING,

INC., to interpose

an answer to the

complaint of

plaintiff in this

matter is hereby

extended up to and

including July 10,

2009; (2) That the

defendant's motion

for dismissal of the

complaint is hereby

withdrawn. SO

ORDERED.

(Signed by Judge

Deborah A. Batts

on 7/6/2009) (tve)

(Entered:

07/06/2009)

2009-07-10 12 0

RULE 7.1

CORPORATE

DISCLOSURE

STATEMENT. No

Corporate Parent.

Document filed by

Advernet,

Inc..(Michelen,

Oscar) (Entered:

07/10/2009)

2009-07-10 13 0

ANSWER to

Complaint.

Document filed byAdvernet,

Inc..(Michelen,

Oscar) (Entered:

07/10/2009)

2009-08-19 14 0

RULE 26(f)

DISCOVERY

PLAN

REPORT.Document

filed by Getty

Images (US),

Inc..(Aieta, Mario)

(Entered:

08/19/2009)

2009-09-09 15 0

ORDER

REFERRING

CASE TOMAGISTRATE

JUDGE. Order that

case be referred to

the Clerk of Court

for assignment to a

Magistrate Judge

for Settlement.

Referred to

Magistrate Judge

Kevin Nathaniel

Fox. (Signed by

Judge Deborah A.

Batts on 9/4/2009)

(jmi) (Entered:

09/10/2009)


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2009-09-09 16 0

SCHEDULING

ORDER: Trial:

Estimated trial time

is 2 days. Non-Jury.

Referred to Judge

Fox for settlement

purposes. SO

ORDERED (Signed

by Judge Deborah

A. Batts on

9/4/2009) (jmi)

(Entered:

09/10/2009)

2009-09-21 17 0

ORDER: A

settlement

conference shall be

held in the above-

captioned action on

October 27,2009, at

10:30 a.m., in

courtroom 20A, 500

Pearl St., New

York, New York;

the parties shall

review the

Settlement

Procedures under

which the

conference will be

conducted, in

particular the

attendance and

pre-conference

submission

requirements

specified in

paragraphs three

and six of the

Procedures. The

Procedures are

being provided to

the parties with a

copy of this order;

and at least seven

days prior to the

above-notedsettlement

conference, the

parties shall confer,

in person or by

telephone, to

engage in

good-faith

settlement

negotiations.

Should the parties

resolve the

litigation prior to

the settlement

conference, the

parties shall notify

the undersigned, in

writing,

expeditiously.

(Signed by

Magistrate Judge

Kevin Nathaniel

Fox on 9/21/2009)

(jpo) (Entered:

09/22/2009)

2010-01-15 18 0

ORDER

REFERRING

CASE TO

MAGISTRATE

JUDGE. Order that

case be referred to

the Clerk of Court


5 2/17/2012


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for assignment to a

Magistrate Judge

for Consent under

28 U.S.C. 636(c) for

all purposes

(including trial).

Referred to

Magistrate Judge

Kevin Nathaniel

Fox. (Signed by

Judge Deborah A.

Batts on 1/15/2010)

(jfe) (Entered:01/15/2010)

2010-01-15 19 0

CONSENT TO

JURISDICTION

BY A US

MAGISTRATE

JUDGE by

Advernet, Inc.

(Case No Longer

Referred to

Magistrate Judge)

CASE ASSIGNED

to Magistrate Judge

Kevin Nathaniel

Fox. (Signed by

Judge Deborah A.

Batts on 1/15/2010)

(tve) (Entered:

01/15/2010)

2010-01-21 20 0

ORDER. IT IS

HEREBY

ORDERED that a

telephonic

conference be held

in the above-

captioned action on

January 26, 2010, at

2:30 p.m. The

telephonic

conference shall be

initiated by counsel

to the plaintiff to

(212) 805-6705.

(TelephoneConference set for

1/26/2010 at 02:30

PM before

Magistrate Judge

Kevin Nathaniel

Fox.) (Signed by

Magistrate Judge

Kevin Nathaniel

Fox on 1/21/10)

(rjm) (Entered:

01/22/2010)

2010-01-27 21 0

ORDER, 1. all

discovery, of

whatever nature,

shall be initiated so

as to be completedon or before March

26, 2010; and 2. a

telephonic status

conference will be

held with the parties

on March 9, 2010,

at 11 :30 a.m.

Counsel to the

plaintiff shall

initiate the

telephonic

conference on that

date. (Signed by

Magistrate Judge

Kevin Nathaniel


5 2/17/2012


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Fox on 1/26/10) (pl)

(Entered:

01/27/2010)

2010-04-14 22 0

ORDER: Telephone

Conference set for

4/19/2010 at 02:00

PM before

Magistrate Judge

Kevin Nathaniel

Fox. SO

ORDERED.

(Signed by

Magistrate JudgeKevin Nathaniel

Fox on 4/14/2010)

(tve) (Entered:

04/14/2010)

2010-04-23 23 0

MOTION for Oscar

Michelen to

Withdraw as

Attorney. Document

filed by Advernet,

Inc.. Return Date

set for 6/2/2010 at

09:30

AM.(Michelen,

Oscar) (Entered:

04/23/2010)

2010-04-23 24 0

AFFIDAVIT ofOscar Michelen in

Support re: 23

MOTION for Oscar

Michelen to

Withdraw as

Attorney..

Document filed by

Advernet, Inc..

(Attachments: # 1

Exhibit Retainer

Agreement, # 2

Exhibit Bank

Balance)(Michelen,

Oscar) (Entered:

04/23/2010)

2010-05-19 25 0

ORDER: It is

hereby ordered that

Mr. Michelen's

Local Civil Rule 1.4

application, to be

relieved of the

obligation of

continuing to

represent the

defendant, Docket

Entry No. 23, is

granted. Inasmuch

as the defendant is a

corporate entity

and, therefore,

cannot proceed in

the action pro se, it

shall engage newcounsel on or before

June 1, 2010, and

have its new

counsel file, with

the Clerk of Court,

a notice of

appearance on

behalf of the

defendant. A

telephonic status

conference will be

held with the parties

on June 7, 2010, at

10:15 a.m. Counsel

to the plaintiff shall


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initiate the

telephonic

conference on that

date. Mr. Michelen

is directed to serve a

copy of this order

on the defendant

expeditiously and to

file proof of service

with the Clerk of

Court. (Signed by

Magistrate Judge

Kevin NathanielFox on 5/19/2010)

(jpo) (Entered:

05/19/2010)

2010-06-07 26 0

AFFIDAVIT OF

SERVICE of Order

on Motion served

on Advernet, Inc.

on May 21, 2010.

Service was made

by Mail. Document

filed by Advernet,

Inc.. (Michelen,

Oscar) (Entered:

06/07/2010)

2010-06-23 27 0

MOTION for

Default Judgmentas to. Document

filed by Getty

Images (US),

Inc..(Aieta, Mario)

(Entered:

06/23/2010)

2010-06-23 28 0

DECLARATION of

Mario Aieta in

Support re: 27

MOTION for

Default Judgment

as to.. Document

filed by Getty

Images (US), Inc..

(Attachments: # 1

Exhibit A, # 2

Exhibit B, # 3Exhibit C, # 4

Exhibit D, # 5

Exhibit E, # 6 Text

of Proposed Order

Clerk's Certificate)

(Aieta, Mario)

(Entered:

06/23/2010)

2010-06-23 29 0

DECLARATION of

Lisa Willmer in

Support re: 27

MOTION for

Default Judgment

as to.. Document

filed by Getty

Images (US), Inc..(Attachments: # 1

Exhibit A)(Aieta,

Mario) (Entered:

06/23/2010)

2010-06-23 30 0

MEMORANDUM

OF LAW in Support

re: 27 MOTION for

Default Judgment

as to.. Document

filed by Getty

Images (US), Inc..

(Aieta, Mario)

(Entered:

06/23/2010)


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2010-06-23 31 0

AFFIDAVIT OF

SERVICE of

Plaintiffs Motion

For Default

Judgment Against

Advernet, Inc.,

Declaration of

Mario Aieta in

Support of Plaintiffs

Motion for Default,

Declaration of Lisa

Willmer in Support

of Plaintiffs Motionfor Default and

Memorandum of

Law in Support of

Plaintiffs Motion

for Default

Judgment Against

Advernet, Inc.

served on Advernet

Inc. on June 23,

2010. Service was

made by Mail.

Document filed by

Getty Images (US),

Inc.. (Aieta, Mario)

(Entered:

06/23/2010)

2010-10-08 32 0

ORDER re 6/23/10

plaintiff application

for default

judgment against

the defendant: On

or before 10/15/10,

the plaintiff is

directed to file and

serve, on the

defendant, the

certificate of the

Clerk of Court

acknowledging the

defendant's default

pursuant to FRCP

55(a). (Signed by

Magistrate JudgeKevin Nathaniel

Fox on 10/8/10)

(cd) (Entered:

10/12/2010)

2010-10-13 33 0

AFFIDAVIT OF

SERVICE of

Clerk's Certificate

served on Advernet

Inc. c/o Scott

Ekster, President on

10/12/2010. Service

was made by Mail.

Document filed by

Getty Images (US),


(Entered:

10/13/2010)

2010-11-02 34 0

ORDER the Clerk

of Court is directed

to enter the

defendant's default

on the docket sheet

maintained in this

action. The plaintiff

shall submit to the

Court, on or before

11/12/10, proof of

service on the

defendant of a copy

of (i) the Clerk's

Certificate noting


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the default, and as

further set forth in

this

document.Motion to

set aside the default

due by 12/2/2010.

Response due by

12/16/2010. Reply

due by 12/30/2010.

If the defendant

does not challenge

the entry of default,

by making a motionpursuant to FRCP

55(c), the plaintiff is

granted leave until

12/9/10, to file its

motion for entry of

a judgment by

default, pursuant to

FRCP 55(b)(2).

(Signed by

Magistrate Judge

Kevin Nathaniel

Fox on 11/2/10)

(cd) (Entered:

11/02/2010)

2010-11-02 35 0

MEMORANDUM

AND ORDER

denying without

prejudice 27 Motion

for Default

Judgment. (Signed

by Magistrate Judge

Kevin Nathaniel

Fox on 11/2/10)

(cd) (Entered:

11/02/2010)

2010-11-02 36 0

NOTICE OF

ENTRY OF

DEFAULT (Clerk's

Certificate) as to

Advernet, Inc., f/n/a

VR Marketing, Inc.

Default entered.

(ml) (Entered:11/02/2010)

2010-11-11 37 0

AFFIDAVIT OF

SERVICE of

Clerk's Certificate

of Default, Docket

Sheet, and

Memorandum and

Order served on

Advernet Inc. on

11/11/10. Service

was made by Mail.

Document filed by

Getty Images (US),

Inc.. (Attachments:

# 1 Exhibit Clerk's

Certificate notingdefault, # 2 Exhibit

Docket Sheet

reflecting Clerk's

entry of default, # 3

Exhibit

Memorandum and

Order of November

2, 2010)(Aieta,

Mario) (Entered:

11/11/2010)

2010-12-09 38 0

NOTICE OF

APPEARANCE by

Michael Simeon

Delehanty on behalf

of Getty Images


5 2/17/2012


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(US), Inc.

(Delehanty,

Michael) (Entered:

12/09/2010)

2010-12-09 39 0

MOTION for

Default Judgment

as to Defendant

Advernet, Inc. f/k/a

VR Marketing.

Document filed by

Getty Images (US),

Inc.. (Attachments:

# 1 Text ofProposed Order)

(Delehanty,

Michael) (Entered:

12/09/2010)

2010-12-09 40 0

DECLARATION of

Michael S.

Delehanty in

Support re: 39

MOTION for

Default Judgment

as to Defendant


VR Marketing..

Document filed by

Getty Images (US),

Inc.. (Attachments:# 1 Exhibit A, # 2

Exhibit B, # 3

Exhibit C, # 4

Exhibit D, # 5

Exhibit E, # 6

Exhibit F, # 7

Exhibit G, # 8

Exhibit

H)(Delehanty,

Michael) (Entered:

12/09/2010)

2010-12-09 41 0

DECLARATION of

Lisa Willmer in

Support re: 39

MOTION for

Default Judgment

as to DefendantAdvernet, Inc. f/k/a

VR Marketing..

Document filed by

Getty Images (US),

Inc.. (Attachments:

# 1 Exhibit

A)(Delehanty,

Michael) (Entered:

12/09/2010)

2010-12-09 42 0

MEMORANDUM

OF LAW in Support

re: 39 MOTION for

Default Judgment

as to Defendant


VR Marketing..Document filed by

Getty Images (US),

Inc.. (Delehanty,

Michael) (Entered:

12/09/2010)

2010-12-09 43 0

AFFIDAVIT OF

SERVICE of Notice

of Motion for

Default Judgment

and Supporting

Documents served

on Advernet, Inc.,

f/k/a/ VR

Marketing, Inc. on

12/9/2010. Service


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was made by Mail.

Document filed by

Getty Images (US),

Inc.. (Delehanty,

Michael) (Entered:

12/09/2010)

2010-12-16 44 0

ORDER: On

January 11, 2011, at

2:30 PM, in

Courtroom 20A,

500 Pearl Street,

New York, New

York 10007, aninquest hearing will

be conducted,

pursuant to Rule

55(b)(2), in

connection with the

plaintiffs

application for

judgment by

default,as set forth

in this Order. The

plaintiff is directed

to serve the

defendant with a

copy of this order

and file an affidavit

of service with the

court, on or before

December 23, 2010.

(Signed by

Magistrate Judge

Kevin Nathaniel

Fox on 12/16/2010)

Copies Mailed By

Chambers. (jpo)

(Entered:

12/16/2010)

2010-12-22 45 0

AFFIDAVIT OF

SERVICE of Order

of Magistrate Judge

Fox dated

December 16, 2010

served on Advernet

Inc., f/k/a VRMARKETING,

INC. on

12/22/2010. Service

was made by Mail.

Document filed by

Getty Images (US),

Inc.. (Attachments:

# 1 Exhibit Order of

U.S. Magistrate

Judge Fox dated

December 16,

2010)(Delehanty,

Michael) (Entered:

12/22/2010)

2011-01-03 46 0

ENDORSED

LETTER addressedto Magistrate Judge

Kevin Nathaniel

Fox from Mario

Aieta, dated

12/22/2010, re: We

represent Plaintiff,

Getty Images (US)

Inc., in this case. By

order dated

December 16, 2010,

Your Honor

directed that an

inquest hearing take

place on January 11,

2011.


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Unfortunately, I am

scheduled to be on

vacation from

January 10 to

January 16 and to

be in London for

depositions on

January 19, 20 and

21. Therefore, I

respectfully request

a two week

adjournment of the

inquest hearing, toJanuary 28, or to

any day thereafter

that is convenient

for the Court.

ENDORSEMENT:

The hearing shall be

held on February 1,

2011, at 2:30 p.m.,

in Courtroom 20A.

The plaintiff shall

serve a copy of this

Memorandum

Endorsement on the

defendant. SO

ORDERED.

(Inquest Hearing set

for 2/1/2011 at

02:30 PM in

Courtroom 20A,

500 Pearl Street,

New York, NY

10007 before

Magistrate Judge

Kevin Nathaniel

Fox) (Signed by

Magistrate Judge

Kevin Nathaniel

Fox on 1/3/2011)

(lnl) (Purs. to

Chambers request,

Main Document 46

replaced on

1/3/2011 to reflectnew hrg. date &

NEF Re-generated

to parties) (lnl).

(Entered:

01/03/2011)

2011-01-20 47 0

AFFIDAVIT OF

SERVICE of Memo

Endorsed letter

from Mario Aieta to

Magistrate Judge

Fox dated

12/22/2010;

Magistrate Judge

Fox Ordered on

1/3/2011 that

Inquest Hearing

will take place on

2/1/2011 served on

Advernet, Inc., f/k/a

VR Marketing, Inc.

on 1/19/2011.

Service was made

by Mail. Document

filed by Getty

Images (US), Inc..

(Delehanty,

Michael) (Entered:

01/20/2011)

2011-02-04 48 0

ENDORSED

LETTER addressed

to Magistrate Judge


15 2/17/2012


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Kevin Nathaniel

Fox from Mario

Aieta dated

2/2/2011 re:

Counsel for the

Plaintiff writes to

enclose Plaintiff's

Exhibits 8 and 9,

which were not

available in hard

copy during the

hearing. Counsel

would also like toclarify that

Plaintiff's Exhibit 5

("Shopping Cart")

was, in fact, a

redacted version.

We request

permission to

submit a

post-hearing brief

summarizing the

evidence supporting

plaintiffs request for

damages and

addressing the issue

of pre-judgment

interest on any

award of damages

made by the court.

ENDORSEMENT:

Application granted.

On or before

2/18/2011, the

plaintiff shall file its

post-hearing brief.

(Signed by

Magistrate Judge

Kevin Nathaniel

Fox on 2/4/2011)

(ab) (Entered:

02/04/2011)

2011-02-18 49 0

TRANSCRIPT of

proceedings held on

February 1, 20112:55 p.m. before

Magistrate Judge

Kevin Nathaniel

Fox. (ajc) (Entered:

02/18/2011)

2011-02-18 50 0

BRIEF Post Inquest

Hearing on

Damages.

Document filed by

Advernet,

Inc..(Aieta, Mario)

(Entered:

02/18/2011)

2011-04-08 51 0

ORDER: The Court

finds that the

irrelevant materialin exhibit No.5 had

already been

excised, at the time

it was offered for

admission into

evidence, and that

exhibit No.9

satisfies the

requirements of

Fed. R. Evid.

803(6) and may be

received in

evidence as a

business record.

Therefore, the


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plaintiffs exhibit

Nos. 5 and 9 are

received in

evidence. (Signed

by Magistrate Judge

Kevin Nathaniel

Fox on 4/8/2011)

(ae) Modified on

5/6/2011 (ae).

(Entered:

05/04/2011)

2011-06-30 52 0

MEMORANDUM

AND ORDER Forthe foregoing

reasons, the

plaintiff's motion

for judgment, by


Fed. R. Civ. P.

55(b)(2), Docket

Entry No. 39, is

denied, and the

action is dismissed

with prejudice.

(denying 39 Motion

for Default

Judgment); (Signed

by Magistrate Judge

Kevin Nathaniel

Fox on 6/29/11)

(djc) (Entered:

06/30/2011)

2011-08-10

13:14:0921fb557a7cd7e2cee2c72adef0381cd5008bd646

2011-06-30 53 0

CLERK'S

JUDGMENT That

for the reasons

stated in the Court's

Memorandum and

Order dated June

29, 2011, plaintiffs

motion for

judgment, by


Fed. R. Civ. P.

55(b)(2), is denied,

and the action is

dismissed withprejudice. (Signed

by Clerk of Court

Ruby Krajick on

6/30/11)

(Attachments: # 1

notice of right to

appeal)(ml)

(Entered:

06/30/2011)

2011-07-14 54 0

MOTION for

Reconsideration re;

52 Order on Motion

for Default

Judgment,.

Document filed by

Getty Images (US),Inc..(Aieta, Mario)

(Entered:

07/14/2011)

2011-07-14 55 0

MEMORANDUM

OF LAW in Support

re: 54 MOTION for

Reconsideration re;

52 Order on Motion

for Default

Judgment,..

Document filed by

Getty Images (US),


(Entered:

07/14/2011)

2011-12-14

12:33:28eae9303bf49cf9a9c8ec2c6862f95b5ae654e53e


15 2/17/2012


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2011-11-22 56 0

MEMORANDUM

AND ORDER: The

plaintiff's motion

for reconsideration,

made pursuant to

Local Civil Rule 6.3

of this court,

Docket Entry No.

54, is denied.

(Signed by

Magistrate Judge

Kevin Nathaniel

Fox on 11/22/2011)(rdz) (Entered:

11/23/2011)


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Getty Images vs Advernet: Complaint

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Transcript of Getty Images vs Advernet: Complaint