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McDermott v. Monday Monday, LLC

District court denies attorney Richard Liebowitz’s motion to redact reference from earlier opinion describing him as a “known copyright troll,” finding use of the term was “apt” and would not cause Liebowitz undue and extreme hardship.

Photographer Matthew McDermott brought an action against defendant Monday Monday LLC for copyright infringement, alleging that defendant displayed plaintiff’s copyrighted photograph on its website without authorization. Plaintiff’s complaint acknowledged that defendant is an Idaho limited liability company based in Idaho, but alleged personal jurisdiction existed over the company in New York on the basis that it transacts business there. Defendant, a digital newspaper that neither charges a fee for its content nor sells anything through its website, moved to dismiss the complaint for lack of jurisdiction on the basis that the mere existence of an informational website accessible in New York did not satisfy the minimum contacts requirement, and argued that plaintiff had “apparently filed in this District for his own convenience, but has utterly failed to allege any facts sufficient to establish personal jurisdiction over an Idaho company.” In response, plaintiff voluntarily dismissed the suit.

The same day, defendant filed a motion for attorney’s fees and costs under 17 U.S.C. § 505. The court denied the motion but, in doing so, criticized the tactics of plaintiff’s counsel Richard Liebowitz. The court stated that Liebowitz “is a known copyright ‘troll,’ filing over 500 cases in this district alone in the past twenty-four months,” and added that “whether or not an attorney’s fee award could be properly awarded against the plaintiff under Section 505, such an award against plaintiff’s counsel may be appropriate in an exercise of this Court’s inherent power.” Approximately a month later, Liebowitz filed a motion pursuant to Federal Rule of Civil Procedure 60(b) objecting to use of the term “copyright troll” and requesting that it be redacted from the opinion. The court, however, denied Liebowitz’s motion.

As an initial matter, the court explained, Rule 60(b) did not apply to Liebowitz’s request. While that rule “provide[s] a limited avenue for relief from judgment,” Liebowitz, it noted, “seeks no relief from the judgment,” since he had voluntarily dismissed his client’s action. Relief under Rule 60(b), the court added, is “generally not favored” and is properly granted only upon a showing of “exceptional circumstances justifying relief, when the judgment may work an extreme and undue hardship.” According to the court, even assuming that the rule applied to Liebowitz’s request, Liebowitz failed to demonstrate that the use of the term “copyright troll” caused him extreme and undue hardship.

Referring to its earlier opinion, the court defined the term “copyright troll” as follows: “In common parlance, copyright trolls are more focused on the business of litigation than on selling a product or service or licensing their copyrights to third parties to sell a product or service. A copyright troll plays a numbers game in which it targets hundreds or thousands of defendants seeking quick settlements priced just low enough that it is less expensive for the defendant to pay the troll rather than defend the claim.” Based on that, the court concluded that Liebowitz’s “litigation strategy in this district fits squarely within the definition of a copyright troll.” According to the court, Liebowitz had filed more than 700 cases since 2016, more than 500 of which were voluntarily dismissed, settled or otherwise disposed of before any merits-based litigation, and some of which were dismissed because Liebowitz failed to prosecute his clients’ claims. Surveying various cases that Liebowitz had filed, the court observed, among other things, that several of Liebowitz’s cases have been dismissed from the bench as frivolous; multiple courts have ordered Liebowitz to show cause why he should not be required to post security for costs as a condition to proceeding with an action; he has been admonished for repeating arguments that “have no basis in law”; and he has been sanctioned for failing to comply with court orders and for failing to produce materials during discovery.

For these reasons, the court concluded, “[p]ress coverage that accurately summarizes the status and outcome of Mr. Liebowitz’s cases in this District does not present an undue and extreme hardship” justifying relief under Rule 60(b), and Liebowitz failed to point to any other reason justifying the requested redaction.

Summary prepared by Frank D’Angelo and Nathalie Russell