Harrington v. Aerogelic Ballooning, LLC

BLAINE HARRINGTON, III, Plaintiff, v. AEROGELIC BALLOONING, LLC, SHANE CORY, Defendants.

Civil Action No. 18-cv-02023-MSK-NYW

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

April 25, 2019

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

Magistrate Judge Nina Y. Wang

This action comes before this court for recommendation on the following three issues:

(1) The amount of statutory damages to be awarded to Plaintiff pursuant to the Order dated January 4, 2019, [#27], entered by the presiding judge, the Honorable Marcia S. Krieger;

(2) Plaintiff's Motion for Rule 11 Sanctions, and Points and Authorities in Support Thereof ("Motion for Sanctions") [#26, filed January 4, 2019]; and

(3) Plaintiff's Motion to Exclude Expert Testimony of Joshua T. Martin ("Motion to Exclude") [#47, filed March 29, 2019].

These matters were referred to this Magistrate Judge pursuant to 28 U.S.C. § 636(b), the Order Referring Case dated August 13, 2018 [#5], and the Memoranda dated February 13, 2019 [#36] and March 29, 2019 [#48]. On March 19, 2019, in anticipation of an evidentiary hearing on the issue of statutory damages, this court convened a Status Conference during which the Parties and the court discussed the witnesses to be presented, including expert witnesses. [#45]. That same day, Defendants Aerogelic Ballooning, LLC ("Aerogelic Ballooning") and Shane Cory ("Mr. Cory") (collectively, "Defendants") filed a "Motion to Certify Joshua T. Martin as an Expert Rule 702." [#44].¹ The court held an evidentiary hearing on the issue of statutory damages on March 21, 2019, and entertained oral argument on the issue as well as the Motion for Sanctions. [#46]. Being fully apprised of the premises, this court respectfully RECOMMENDS that Plaintiff be AWARDED $3,500 in statutory damages; that the Motion for Sanctions be DENIED; and that the Motion to Exclude be GRANTED IN PART and DENIED IN PART.²

BACKGROUND

Plaintiff Blaine Harrington III ("Plaintiff" or "Mr. Harrington") is a professional photographer, and initiated this action for copyright infringement on August 9, 2018, based on Defendants' use of a photograph from a hot air balloon ("Copyrighted Work") without permission.

On September 28, 2018, Defendants filed an Answer to the Complaint. [#12]. The disputes between the Parties began almost immediately. After this court set a Scheduling Conference for October 18, 2018, see [#7], Plaintiff filed a Motion to Participate in Initial Scheduling Conference by Telephone ("Motion to Appear by Telephone"), see [#13]. Defendants objected, see [#14], and, in the Response, Defendants articulated several bases for such objection, including opposing counsel's failure to confer; Plaintiff's demand of a disproportionate amount of damages; a delay in providing a proposed Scheduling Order; "Plaintiff's Counsel is not properly admitted to thisCourt"; and "Federal Courts are deluged with 'Professional Photographer' cases including pornography cases where alleged artists plant unlabeled pictures and movies on the internet, then track innocent downloaders, then attempt to extort thousands of dollars for an innocent click of a button." [Id. at 1-2]. Defendants' Response to the Motion to Appear by Telephone also included a statement that "[d]enying Plaintiff's ill pled and false Motion may help to defuse this type of Complaint for the public good." [Id. at 2]. Plaintiff then filed a Reply, entitled "Plaintiff's Response to Defendant's Opposition to Motion to Participate in Initial Scheduling Conference by Telephone and Proposed Order," in which Plaintiff sought to rebut Defendants' statements reflected in their Response. See [#15]. This court granted the Motion to Appear by Telephone, but converted the Scheduling Conference to a Status Conference due to the Parties' failure to submit a proposed Scheduling Order by the deadline set in its original Minute Order. See [#17]. The following day, Plaintiff submitted a proposed Scheduling Order, see [#18], and the court proceeded to consider scheduling during the Status Conference on October 18, 2018, see [#19].

The court entered the Scheduling Order on October 18, 2018, with a number of edits. See [#20]. The Scheduling Order contained the following deadlines with respect to expert disclosures: the Parties were required to disclose experts and comply with Rule 26(a)(2)(B) or (C) for disclosures for affirmative experts no later than March 1, 2019, rebuttal experts no later than March 22, 2019, and close expert discovery on or before April 12, 2019. [Id. at 5]. During the Scheduling Conference, counsel for Defendants indicated his intent to raise certain defenses. To that end, Defendants filed "Defendants' Motion for Summary Judgement [sic]" on October 29, 2018. [#22]. Plaintiff then filed an Opposition to Motion for Summary Judgment, [#23], and Defendants filed a Reply, [#24].

On November 29, 2018, Judge Krieger issued an Opinion and Order Denying Motion for Summary Judgment. See [#25]. In it, Judge Krieger not only denied Defendants' Motion for Summary Judgement, but included an Order to Show Cause as to "why the Court should not grant summary judgment to Mr. Harrington on the question of liability on his claim of copyright infringement, leaving only the question of the appropriate amount of statutory damages to be addressed in a future evidentiary hearing." [Id. at 4-5].

On January 4, 2019, Plaintiff filed the instant Motion for Sanctions. [#26]. That same day, having not received any response to the Order to Show Cause by Defendants, Judge Krieger entered an Order granting summary judgment in favor of Plaintiff and setting an evidentiary hearing on the issue of statutory damages for January 24, 2019. See [#27]. Defendants then filed a "Motion to Continue Evidentiary Hearing to February, 2019 or Close the Case," [#28], which Judge Krieger granted in part as to the rescheduling of the evidentiary hearing to January 28, 2019, and denied in part as to any substantive relief requested by Defendants. [#29]. Defendants then filed a Second Motion to Continue on January 16, 2019, [#30], which Judge Krieger granted the following day, see [#31]. Then, on January 21, 2019, Plaintiff filed a Motion to Continue the evidentiary hearing, [#32], which Judge Krieger granted, vacating the February 4, 2019 hearing, see [#35]. On February 13, 2019, Judge Krieger referred both the issue of statutory damages and the Motion for Sanctions to this Magistrate Judge for Recommendation. [#36].

On February 21, 2019, this court set the evidentiary hearing as to the appropriate amount of statutory damages for March 21, 2019. [#38]. The court also set deadlines for submission of proposed witness and exhibits lists for March 7, 2019, and for objections to such designations no later than March 14, 2019. [Id.]. On March 7, 2019, Defendants submitted their proposed witnessand exhibit lists. [#39]. On March 8, 2019, Plaintiff submitted his proposed witness and exhibit lists. [#40]. No objections were raised or filed by either party by March 14, 2019.

Nevertheless, having reviewed the proposed witness and exhibit lists and finding defense counsel listed as a witness on each side's witness list, this court convened a Status Conference on March 19, 2019. [#45]. It was during this conference that Plaintiff's counsel first raised an issue with the testimony of either of Defendants' expert witnesses, Joshua T. Martin and Lewis Brande. [Id.]. This court indicated its intent, given its referral role, to take testimony from any individual offered as an expert and then have Plaintiff file a Motion to Exclude no later than March 29, 2019, with a Response by Defendants filed no later than April 12, 2019, so that Judge Krieger could have a complete record to review with any Recommendation and/or Order. [Id.].

The Parties appeared for the Evidentiary Hearing on the issue of statutory damages on March 21, 2019. [#46]. At the hearing, Plaintiff testified on his own behalf, but did not offer nor seek to admit any other evidence, including any of the exhibits listed on his Exhibit List. Compare [#49] with [#40]. Defendants elicited testimony from Mr. Cory and Mr. Joshua Martin, and sought to tender Mr. Joshua Martin as an expert. [#49]. Defendants also offered a series of exhibits, which did not—in this court's review—directly correlate to the proposed exhibits listed in Defendants' Exhibit List. Compare [#46-1 through #46-16] with [#39 at 2]. The court then allowed the Parties to make limited argument with respect to both the issue of statutory damages and the Motion for Sanctions, and took these matter under advisement for the purposes of this Recommendation.

Plaintiff filed the instant Motion to Exclude on March 29, 2019, [#47], and on April 15, 2019, Defendants filed "Defendants' Motion to Convert Plaintiff's Motion to Exclude Expert Testimony of Joshua T. Martin to a Reply to Defendants' Motion to Certify Joshua T. Martin asan Expert Rule 702 and Accept this Filing as a Response to Plaintiff's Reply" ("Defendants' Response to the Motion to Exclude").³ [#50]. Accordingly, these matters are ripe for Recommendation.

LEGAL STANDARDS

I. Copyright Damages

An infringer of copyright is liable for either the copyright owner's actual damages or statutory damages under 17 U.S.C. § 504. In his Complaint, Mr. Harrington seeks only an award of statutory damages, see [#1 at 5], which Judge Krieger recognized in her Order granting summary judgment on liability in favor of Plaintiff, see [#27].

The Copyright Act provides that statutory damages ordinarily may be awarded in the sum of not less than $750 or more than $30,000. 17 U.S.C. § 504(a). However, if the infringer sustains the burden of proving, and the court finds, that the infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright, the court may exercise its discretion to reduce the award of statutory damages to a sum of not less than $200. Id. § 504(c)(2). The...