USDS SDNY - crisona.comcrisona.com/iplaw/cases/Gordon.pdf · Case 1:11-cv-01001-RJS Document 86...

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

JANINE GORDON .,

-v-

Plaintiff,

RYAN MCGINLEY, et al. ,

Defendants.

USDS SDNY

DOCUMENT

ELECTROl\"ICALLY FILED DOC#: DATE F- - -- J-:IL-ED-:-", - 'f-r-_-'

No. 11 Civ. 1001 (RJS) ORDER

RICHARD 1. SULLIVAN, District Judge:

By Order dated March 27, 2013 (the "March 27 Order"), the Court awarded Defendants

$10,000 in attorneys' fees based on its finding that Plaintiffs federal copyright infringement

claims were objectively unreasonable. (Doc. No. 69.) In response to that order, Plaintiff has

filed (1) a motion for reconsideration (Doc. No. 71); (2) a motion asking the Court to recuse

itself from this action (Doc. Nos. 73, 79); (3) a motion for an extension of time in which to file

an appeal (Doc. No. 74); and (4) an application for a preliminary injunction and temporary

restraining order enjoining Defendants from restraining her bank account during the pendency of

her appeal (Doc. No. 77), which the Court has construed as a request for a stay pending appeal

pursuant to Rule 62( d) of the Federal Rules of Civil Procedure (Doc. No. 81). Defendants

submitted a consolidated response opposing Plaintiffs filings on May 23, 2013 (Doc. No. 84),

and Plaintiff submitted a further memorandum in support of her filings on May 29, 2013 (Doc.

No. 85). Because the recusal motion raises a threshold issue, the Court will address that filing

first and then discuss the remaining filings in their order of submission.

Case 1:11-cv-01001-RJS Document 86 Filed 06/04/13 of 10

I. Motion for Recusal

Subsection 455(a) of Title 28 of the United States Code provides that "[a]ny justice,

judge, or magistrate judge of the United States shall disqualify himself in any proceeding in

which his impartiality might reasonably be questioned." In determining whether recusal is

appropriate, the applicable standard is whether a reasonable person, knowing all the facts, would

conclude that the trial judge's impartiality has been compromised. Apple v. Jewish Hasp. &

Med. Ctr., 829 F.2d 326, 333 (2d Cir. 1987). Where no grounds for recusal exist, a judge is

obligated not to recuse himself. In re Drexel Burnham Lambert Inc., 861 F.2d 1307, 1312 (2d

Cir. 1988).

Plaintiffs motion argues that recusal is necessary based on (1) the Court's prior

professional association with entities that either represented or otherwise worked with Defendant

Levi Strauss & Co., Inc. ("Levi Strauss"); and (2) the Court's general attitude toward the parties.

(See Doc. No. 79 at 3-4.) Although pro se motions are afforded "some latitude," Plaintiffs

motion here clearly fails to state a cognizable ground for recusaI. Moates v. Barkley, 147 F.3d

207, 209 (2d Cir. 1998). With respect to the first asserted basis, the Court's relationship with

Levi Strauss is far too attenuated to support recusaI. Levi Strauss was a client of Wachtell,

Lipton, Rosen & Katz, a law firm with which the Court was associated two decades ago; more

recently, Levi Strauss, like thousands of other companies, did business with a multinational

insurance company for which the Court previously served as general counsel but with which the

Court has no ongoing relationship of any kind. Clearly, this is not enough to warrant recusaI.

Indeed, even when a judge formerly represented one of the parties in a proceeding - a far more

significant relationship than any that ever existed between the Court and Levi Strauss - that

"prior representation . . . does not automatically warrant disqualification." United States v.

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Lovaglia, 954 F.2d 811, 815 (2d Cir. 1992). Instead, a court must consider such factors as

whether it has "a financial interest in [one of the parties]," whether it would be "adversely

affected" by ruling any way, and whether it has outside, independent knowledge of "the

underlying facts or circumstances" of the case. Id. Here, because the Court has neither any

personal interest - financial or otherwise - that this litigation affects nor any independent

knowledge of the facts or circumstances of this case, recusal is not required.

Plaintiffs second argument fails because it attributes to the Court views that the Court

neither holds nor has expressed. The Court did not "insinuate[] that the only evidence that

[Plaintiff] submitted was manipulated" (Doc. No. 79 at 4 (emphasis added)); rather, it noted that

Plaintiff "manipulate[ed] the images in order to make McGinley's images appear more similar to

her own" (March 27 Order at 5) - something she undoubtedly did. See Chevron Corp. v.

Donziger, 783 F. Supp. 2d 713, 722 (S.D.N.Y. 2011) ("[C]omments based on evidence adduced

before a judge are not a basis for recusal even where they reflect a disposition with respect to a

litigant." (citing Liteky v. United States , 510 U.S. 540, 550-51 (1994)) . Furthermore, Plaintiff

mistakes the Court's skepticism - and ultimate rejection - of her broad theory of copyright

infringement for "deep-seeded [sic] antagonism to art in general." (Doc. No. 79 at 6.) In fact,

the statements Plaintiff construes as reflecting such antagonism merely questioned the wisdom of

bringing claims that, ultimately, both this Court and the Second Circuit found meritless and that

this Court, moreover, found objectively unreasonable. Thus, at bottom, Plaintiffs recusal

motion is premised on a disagreement with the Court ' s critique and rejection of her legal claims.

Of course, the law is quite clear that "adverse rulings, by themselves, do not constitute grounds

for recusal." Ocasio v. Fashion Ins!. o/Tech., 9 F. App'x. 66,68 (2d Cir. 2001) (citing Liteky,

510 U.S. at 555) . Accordingly , Plaintiff fails to establish a basis for recusal, and the Court is

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obligated to deny her motion.

II. Motion for Reconsideration

Plaintiff also seeks reconsideration of the Court's March 27 Order awarding Defendants

$10,000 for attorneys' fees. "A motion for reconsideration under ... Rule 6.3 'will generally be

denied unless the moving party can point to controlling decisions or data that the court

overlooked - matters, in other words, that might reasonably be expected to alter the conclusion

reached by the court.'" Atl. Recording Corp. v. BCD Music Grp., Inc., No. 08 Civ. 5201 (WHP),

2009 WL 2046036, at *1 (S.D.N.Y. July 15, 2009) (quoting Shrader v. CSX Transp., Inc., 70

F.3d 255, 257 (2d Cir. 1995)). "Alternatively, a motion for reconsideration may be granted to

'correct a clear error or prevent manifest injustice.'" Banco de Seguros Del Estado v. Mut.

Marine Offices, Inc., 230 F. Supp. 2d 427, 428 (S.D.N.Y. 2002) (quoting Griffin Indus., Inc. v.

Petroiam, Ltd., 72 F. Supp. 2d 365, 368 (S.D.N. Y. 1999)).

The main basis for reconsideration put forward by Plaintiff is that the Court incorrectly

"did not decide that [Plaintiff's] works were fine art, which would have afforded her protect[ion]

by [the Visual Artists Rights Act ("V ARA"), 17 U.S.c. § 106A,] given the stature of her work."

(Doc. No. 71 at 1.) Plaintiff's argument, however, is mistaken for two reasons. First, Plaintiff

confuses the colloquial understanding of the term "fine art" - which may well apply to her

works, several of which are in the permanent collection of the Whitney Museum of American

Art - with the legal definition of "visual art" under V ARA, which turns on criteria set forth in 17

U.S.C. § 101. Because the record before it did not indicate whether those criteria were satisfied,

the Court was correct not to determine whether Plaintiff's works qualified as "visual art ."

Second, and more fundamentally, even if the Court had determined that Plaintiff's work

qualified as "visual art," that determination would not have altered the Court's decision to award

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Defendants attorneys' fees, since the upshot of the Court's analysis of VARA was to reject one

of Defendants' arguments in favor of fees - the same outcome as if the Court had concluded the

Plaintiffs works were "visual art" within the meaning of the statute.

Plaintiff also argues that "[i]t is unacceptable that there is a judgment against PlaintiffT]

regarding the position that [Plaintiff] intentionally manipulated images." (Doc. No. 71 at 2.) Of

course, as noted above, there can be no question that Plaintiff did intentionally manipulate

Images to enhance alleged similarities between her work and Defendant McGinley's. See

Gordon v. McGinley, No. II Civ. 1001 (RJS), 2011 WL 3648606, at *4 (S.D.N.Y. Aug. 18,

2011). And, in any event, Plaintiffs dissatisfaction with the Court's ruling is not a valid basis

for reconsideration.

III. Motion for Extension of Time to Appeal

Plaintiff next seeks an extension of time to appeal the Court's judgment granting

Defendants attorneys' fees (the "Judgment"). (See Doc. No. 74.) Rule 4(a) of the Federal Rules

of Appellate Procedure permits a party to appeal a judgment within thirty days of the date when

that judgment is entered by the district court. Fed. R. App. P. 4(a)(l). Ifa party does not file an

appeal within that thirty-day window, its appeal will be barred unless the district court either

extends the time to appeal pursuant to Rule 4(a)(S) or reopens the time pursuant to Rule 4(a)(6).

Here, there is no question that Plaintiff is outside the thirty-day window to appeal the Judgment,

which was entered on March 28, 2013 (Doc. No. 70), more than one month before Plaintiff

moved to extend time. However, the Court finds that an extension is appropriate under Rule

4(a)(S).'

Rule 4(a)(S) permits a court to grant an extension if the movant "shows excusable neglect

Because Rule 4(a)(5) supports an extension, the Court does not reach whether Rule 4(a)(6) does so as well.

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or good cause." Fed. R. App. P. 4(a)(5). This standard

"is at bottom an equitable one, taking account of all relevant circumstances," including: (I) the danger of prejudice to the non-moving party, (2) the length of delay and impact on judicial proceedings, (3) the reason for the delay, including whether it was within the reasonable control of the moving party, and (4) whether the moving party acted in good faith.

Williams v. KFC Nat'f Mgmt. Co., 391 F.3d 411,415 (2d Cir. 2004) (quoting Pioneer Inv. Servs.

Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 395 (1993)). Here, Plaintiff seeks an

extension of time because she did not receive notice of the Judgment through the Court's

electronic filing system ("ECF") and , as a result, only learned of the Judgment on May 2, 2013

after the thirty-day window closed and four days before she moved for an extension of time.

(Doc. No. 74.) Plaintiffs account was corroborated by the Southern District's Clerk's Office,

which confinned in an e-mail to the Court that, as a result of a clerical error, Plaintiff did not

start receiving notifications via ECF until May 24, 2013, when the error was fixed. Thus, the

Court finds that Plaintiff has established good cause for granting her motion ? See Williams, 391

F.3d at 415-16 ("[I]t is the third factor - the reason for the delay - that predominates, and the

other three are significant only in close cases.").

IV. Motion for a Stay Pending Appeal

Finally, Plaintiff seeks a temporary restraining order and preliminary injunction barring

Defendants from enforcing the Judgment during the pendency of Plaintiff's appeal, which, in

keeping with its obligation to interpret pro se submissions liberally, the Court has construed as

seeking a stay pending appeal pursuant to Rule 62(d) of the Federal Rules of Civil Procedure.

(Doc. No. 83.) Plaintiff applied for this relief after her bank placed a hold on her account

2 At the same time, the COLIrt notes that on March 29, 2013, it emailed a copy of the March 27 Order to the email address that Plaintiff provided to the COllrt and that the COLIrt has successfully used both before and since then to communicate with her. The Court a lso reminds Plaintiff that. in applying for and receiving access to ECF, she acknowledged that ..e-mail is not foolproof ' and agreed to " regularly review the docket sheet of the case so that I do

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pursuant to a restraining notice obtained by Defendant McGinley under N.Y. C.P.L.R. § 5222.

(See id. at 3-4; Doc. No. 84 at 4.)

As an initial matter, contrary to Plaintiffs argument, the Fair Debt Collection Practices

Act ("FDCPA"), 15 U.S.c. § 1 692a, does not apply to Defendant McGinley's efforts to enforce

the Judgment. (See Doc. No. 83 at 7.) The FDCPA only applies to collection of "debt" as the

statute defines that term. See 15 U.S.C . § 1692a(5). As summarized by the Second Circuit, "the

statute contemplates that the debt has arisen as a result of the rendition of a service or purchase

or property or other item of value." Beggs v. Rossi, 145 F.3d 511 , 512 (2d Cir. 1998) (internal

quotation marks omitted). Clearly, the Judgment here is not the result of such a transaction but

rather is the product of a decision by the Court in favor of Defendants and against Plaintiff.

Because the Judgment thus falls outside the FDCPA's definition of debt, the FDCPA does not

govern efforts to enforce it. See. e.g, Beal v. Himmel & Bernstein. LLP, 615 F. Supp. 2d 214,

217 (S.D.N . Y. 2009) (holding that debts from court-ordered obligations do not implicate the

FDCPA).

Unlike the FDCPA, however, Federal Rule of Civil Procedure 62(d) offers Plaintiff a

possible basis for the relief she seeks. Rule 62(d) provides for an automatic stay pending appeal

upon the appellant's posting of a supersedeas bond. See Fed. R. Civ. P. 62(d); Marcoux v. Farm

Servo & Supplies. Inc. , 290 F. Supp. 2d 457, 485 (S.D.N. Y. 2003) . Rule 62(d) also permits a

court to grant a stay pending appeal without requiring the appellant to post a supersedeas bond,

though in such cases a stay is not automatic. See Texaco Inc. V. Pennzoil Co., 784 F.2d 1133,

1155 (2d Cir. 1986), rev 'd on other grounds sub nom. Pennzoil CO. V. Texaco, Inc. , 481 U.S . 1

(1987) ("[A] court may order partially secured or unsecured stays if they do not unduly endanger

the judgment creditor' S interest in ultimate recovery." (internal quotation marks omitted» .

not miss a filing." (Doc. No. 60.) 7


Rather, a court must consider:

(I) whether the petitioner is likely to prevail on the merits of [her] appeal, (2) whether, without a stay. the petitioner will be irreparably injured, (3) whether issuance of a stay will substantially harm other parties interested in the proceedings, and (4) wherein lies the public interest.

de la Fuente v. DCl Telecommunications, Inc. , 269 F. Supp. 2d 237, 240 (S.D.N.Y. 2003). In

applying these factors, a court must bear in mind that "a supersedeas bond is designed to protect

the appellee." ld. Thus, the "party seeking the stay without a bond has the burden of providing

specific reasons why the court should depart from the standard requirement of granting a stay

only after posting of a supersedeas bond in the full amount of the judgment." ld. Furthermore,

"[t]he bond requirement should not be eliminated or reduced unless doing so 'does not unduly

endanger the judgment creditor's interest in ultimate recovery.'" ld. (quoting Morgan Guar.

Trust Co. v. Republic of Palau, 702 F. Supp. 60, 65 (S.D.N.Y. 1988), vacated on other grounds,

924 F.2d 1237 (2d Cir. 1991 ».

Here, the Court is not satisfied that Defendants' interest as the judgment-creditors would

be protected if Plaintiff were not required to post a supersedeas bond or alternate security. The

Court is not insensitive to the financial difficulties Plaintiff claims to face, but ultimately, those

difficulties do not outweigh Defendants' interest in recovering on the Judgment. See II Charles

A. Wright, Arthur R. Miller, et al., Federal Practice & Procedure § 2905 (3d ed. 2013) ("[T]he

bond requirement will not be waived solely on the basis that it will pose a severe financial

hardship on the appellant unless some other form of security is offered."). Indeed, Plaintiffs

impecunious state raises the serious prospect that what few assets she currently has to satisfy the

Judgment will dissipate over the course of the appeal. Accordingly, while Plaintiff need not

necessarily post a monetary bond, she must post some form of security adequate to protect

Defendants' interest in recovery. Until such time as Plaintiff either posts a bond or proposes

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alternate security that the Court approves, Plaintiff will be expected to comply with the

Judgment.

V. Conclusion

For the reasons set forth above, the Court (I) DENIES Plaintiff's motion for recusal;

(2) DENIES Plaintiffs motion for reconsideration of the March 27 Order; (3) GRANTS

Plaintiff's motion for an extension of time to appeal; and (4) DENIES Plaintiffs motion for a

stay pending appeal without prejudice to renewal upon posting of a supersedeas bond or alternate

security for the full amount of the Judgment. Accordingly, IT IS HEREBY ORDERED THAT

Plaintiff shall have until June 18,20]3 to file any appeal. The Clerk of the COLlrt is respectfully

directed to terminate the motions pending at Doc. Nos. 71,73,74,79, and 82.

SO ORDERED.

Dated: June 4,2013 ~~ New York, New York RI ARD J. SULLIVAN UNITED STATES DISTRICT JUDGE

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A copy of this order has been e-mailed to:

[email protected]

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mailto:[email protected]

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