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McDermott v. Monday Monday, LLC

United States District Court for the Southern District of New York

October 26, 2018, Decided; October 26, 2018, Filed

17cv9230 (DLC)

Opinion

MEMORANDUM OPINION AND ORDER

DENISE COTE, District Judge:

On February 22, 2018, this Court denied the defendant's motion for attorney's fees in this case. McDermott v. Monday Monday, 17cv9230 (DLC), 2018 U.S. Dist. LEXIS 28664, 2018 WL 1033240 (S.D.N.Y Feb. 22, 2018) ("February 22 Opinion"). Over a month later, plaintiff's counsel filed a motion pursuant to Fed. R. Civ. P. 60 objecting to the use of the term "copyright troll" in the February 22 Opinion to describe plaintiff's counsel. He requests that the term be "redacted" from the February 22 Opinion. The request is denied.

BACKGROUND

Plaintiff's counsel, Richard Liebowitz, has filed over 700 cases in this district since 2016 asserting claims of copyright infringment. The instant action was among their number. In this action, the plaintiff sued an Idaho limited liability company based on the assertion that it had displayed the plaintiff's copyrighted photograph on its website. The defendant was served on November 30. Despite his obligation to do [*2]  so, Mr. Liebowitz did not file on ECF either an affidavit reflecting service of the complaint or proof that he had served the initial pretrial conference notice on the defendant.

Moreover, despite the assertion in the complaint that the defendant "transacts business in New York," it appears that the defendant does not do so. On January 17, the defendant moved to dismiss for lack of personal jurisdiction. McDermott, 2018 U.S. Dist. LEXIS 28664, 2018 WL 1033240, at *1. See also 17cv9230, ECF No. 12. Before opposition to the motion was due, the plaintiff voluntarily dismissed his suit. That same day, the defendant sought attorney's fees and costs. McDermott, 2018 U.S. Dist. LEXIS 28664, 2018 WL 1033240, at *1. See also 17cv9230, ECF No. 18. In his opposition to the motion for attorney's fees and costs, Mr. Liebowitz did not suggest that he had any non-frivolous reason to believe that there was personal jurisdiction over the defendant in this district. For the reasons described in the February 22 Opinion, the Court in an exercise of its discretion denied the defendant's motion and declined to award fees against Mr. Liebowitz "on this occasion." McDermott, 2018 U.S. Dist. LEXIS 28664, 2018 WL 1033240, at *3. The February 22 Opinion warned that should Mr. Liebowitz file any other action in this district against a defendant over whom there is no non-frivolous basis to find [*3]  that there is personal jurisdiction, "the outcome may be different." Id.

Despite the exercise of restraint in declining to impose sanctions against Mr. Liebowitz, Mr. Liebowitz has brought this motion.1 He objects to the description in the February 22 Opinion of Mr. Liebowitz as a known copyright troll, 2018 U.S. Dist. LEXIS 28664, [WL] at *3, and requests that the February 22 Opinion with that term "redacted."

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2018 U.S. Dist. LEXIS 184049 *; 2018 WL 5312903

MATTHEW MCDERMOTT, Plaintiff, -v- MONDAY MONDAY, LLC, Defendant.

Prior History: McDermott v. Monday Monday, LLC, 2018 U.S. Dist. LEXIS 28664 (S.D.N.Y., Feb. 22, 2018)

CORE TERMS

troll, cases, redaction, voluntarily dismissed, attorney's fees