Case 3:13-cv-00639-JAM Document 63 Filed 02/09/15 Page 1 of 12
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`UNITED STATES DISTRICT COURT
`DISTRICT OF CONNECTICUT
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`JOSEPH LEARY,
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`Plaintiff,
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`v.
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`No. 3:13-cv-00639 (JAM)
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`ROY MANSTAN, FREDERIC FRESE,
`WESTHOLME PUBLISHING, LLC,
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`Defendants.
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`FREDERIC FRESE, ROY MANSTAN,
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`Counter Claimants,
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`v.
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`JOSEPH LEARY,
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`Counter Defendant.
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`ORDER RE PENDING MOTIONS
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`It is perhaps not surprising that the world’s first submarine was designed and built here in
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`Connecticut, given this state’s rich maritime history and longtime association with the building
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`of boats and submarines. What is surprising, though, is that the first submarine was created well
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`over 200 years ago, during the Revolutionary War, by a farmer from Connecticut named David
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`Bushnell. Bushnell built a one-man submersible vessel, known as the Turtle, to conduct covert
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`underwater attacks on the British naval fleet docked on American shores. The Turtle’s missions
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`were never really successful, but the Turtle itself was a remarkable creation—a fully operational
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`wooden submarine that was praised by the likes of George Washington and Benjamin Franklin.
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`The curious history of David Bushnell and the Turtle submarine has long fascinated
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`Case 3:13-cv-00639-JAM Document 63 Filed 02/09/15 Page 2 of 12
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`plaintiff Joseph Leary, and in the 1970s plaintiff worked with defendant Frederic Frese to build a
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`replica of the Revolutionary-era submarine. Plaintiff also spent decades writing an (as–yet–
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`unpublished) manuscript weaving together a biography of Bushnell, historical information about
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`the Turtle, and plaintiff’s own experience building a replica of the Turtle.
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`Approximately 30 years later, in the first decade of this century, defendants Frederic
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`Frese and Roy Manstan worked together to build another replica of the Turtle. Frese and
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`Manstan then wrote a book about Bushnell, the Turtle submarine, and their own experiences
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`building a replica of the Turtle. Their book—titled Turtle: David Bushnell’s Revolutionary
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`Vessel—was published by co-defendant Westholme Publishing, LLC, in 2010. Plaintiff initiated
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`this copyright infringement case after reading defendants’ book.
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`In his complaint, plaintiff contends that defendants’ book infringes on his copyright in the
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`unpublished manuscript and he also claims that defendants’ conduct violates the Connecticut
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`Unfair Trade Practices Act (“CUTPA”), Conn. Gen. Stat. § 42-110a et seq. In turn, defendants
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`Manstan and Frese have filed a two-count counterclaim against plaintiff, seeking a declaration of
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`non-infringement and claiming that plaintiff’s conduct in connection with this case violates
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`CUTPA. Over the course of this ongoing litigation, the parties have filed numerous motions.
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`This ruling addresses only those motions that were the subject of oral argument at the motion
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`hearing that I held on January 20, 2015.
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`For the reasons set forth below, I deny defendants’ motion for plaintiff to post a $400,000
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`bond. I also deny plaintiff’s motion for leave to file an amended complaint to bring an additional
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`copyright infringement claim related to a photograph in defendants’ book; the motion is
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`manifestly untimely and unsupported by good cause for its late filing. Relatedly, because I deny
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`the motion to file an amended complaint, I deny as moot plaintiff’s motion for summary
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`Case 3:13-cv-00639-JAM Document 63 Filed 02/09/15 Page 3 of 12
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`judgment on this new copyright infringement claim. Finally, I treat plaintiff’s motion for
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`summary judgment on defendants’ CUTPA counterclaim as a motion to dismiss, and I grant that
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`motion on the ground that the claim has been asserted prematurely. Each of these motions is
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`discussed in turn below.
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`Defendants’ Motion to Post Bond (Doc. #27)
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`Defendants Manstan and Frese move for an order requiring plaintiff “to post a bond in
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`the amount of $400,000.00 as security for the costs associated with this litigation pursuant to
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`Local Rule 83.3(a).” Doc. #27 at 1. Under the Federal Rules of Civil Procedure, a “prevailing
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`party” is generally entitled to recoup costs (other than attorneys’ fees) that it incurred in
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`connection with the litigation. Fed. R. Civ. P. 54(d)(1); see also Marx v. Gen. Revenue Corp.,
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`133 S. Ct. 1166, 1172 (2013) (“Rule 54(d)(1) codifies a venerable presumption that prevailing
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`parties are entitled to costs.”). But, as a practical matter, a prevailing defendant who has been
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`sued by an impecunious plaintiff may not be able to collect its costs, especially if the plaintiff’s
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`assets have dwindled since the onset of the proceedings. Accordingly, many district courts have
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`imposed bond requirements “to insure that whatever assets a party does possess will not have
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`been dissipated or otherwise have become unreachable by the time such costs actually are
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`awarded.” Selletti v. Carey, 173 F.3d 104, 112 (2d Cir. 1999) (emphasis omitted).
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`In the District of Connecticut, the bond requirement is found in Local Rule 83.3(a). That
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`provision entitles a defendant “to an order to be entered by the Clerk, as of course, for a cash
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`deposit or bond with recognized corporate surety in the sum of $500.00 as security for costs to be
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`given within thirty days from the entry of such order.” D. Conn. L. Civ. R. 83.3(a). The Court
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`may award “[a]dditional, substituted, or reduced security . . . at any time during the pendency of
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`the action for good cause found by the Court.” Ibid. Elsewhere in the Local Rules, costs are
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`Case 3:13-cv-00639-JAM Document 63 Filed 02/09/15 Page 4 of 12
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`defined to include such items as fees of the clerk, marshal, court reporter, and witnesses, as well
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`as fees for maps, charts, models, photographs, and other similar items. D. Conn. L. Civ. R.
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`54(c)(1)–(6). Attorneys’ fees, however, generally “are not recoverable as costs, unless by order
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`of the Court.” D. Conn. L. Civ. R. 54(c)(7).
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`In this case, defendants contend that a $400,000 bond is warranted because they are likely
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`to succeed on the merits and recover their costs and attorneys’ fees, which will probably reach or
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`exceed $400,000. I am not persuaded. First of all, the bond requirement is not a mechanism for
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`conducting a preliminary assessment of the merits of a claim. Cf. Selletti, 173 F.3d at 112
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`(“[T]he imposition of a security requirement may not be used as a means to dismiss suits of
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`questionable merit filed by plaintiffs with few resources.”). Moreover, while a prevailing
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`defendant in a copyright case might well be awarded attorneys’ fees, see 17 U.S.C. § 505
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`(district court has discretion to “award a reasonable attorney’s fee to the prevailing party as part
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`of the costs”), any decision regarding whether to award such fees is premature at this juncture.
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`And any decision regarding what amount of money might constitute reasonable attorneys’ fees is
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`equally premature.
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`In any event, even assuming that I agreed that defendants would be entitled to attorneys’
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`fees in the realm of $400,000 if they prevail in this litigation, such fees are ordinarily not within
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`the ambit of Local Rule 83.3. True, the Local Rules grant me discretion to require plaintiff to file
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`security for attorneys’ fees. But defendants have articulated no rationale for such an approach in
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`this case, other than their own belief that plaintiff’s claims are meritless. Defendants’ motion to
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`post a bond for $400,000 is denied.1
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`1 This ruling is, of course, without prejudice to the right of any party or parties to seek reasonable attorneys’
`fees pursuant to the Copyright Act in the event that they ultimately prevail in this litigation.
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`Plaintiff’s Motions to Amend the Complaint (Doc. #33) and for Summary Judgment
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`Plaintiff seeks leave to amend his complaint to assert an additional copyright
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`infringement claim related to a photograph that appears on the first page of defendants’ book.
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`Defendants oppose the motion, and they argue that plaintiff has not demonstrated good cause for
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`adding a new claim at this late stage in the litigation.
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`Under Rule 15(a) of the Federal Rules of Civil Procedure, leave to amend a pleading
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`should generally be granted “freely . . . where justice so requires.” Fed. R. Civ. P. 15(a)(2). But
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`this liberal standard does not remain in effect throughout the entire litigation. Fairly early on, the
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`district court “must” issue a scheduling order pursuant to Rule 16 that “limit[s],” among other
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`things, “the time to . . . amend the pleadings.” Fed. R. Civ. P. 16(b)(2), (3)(A). Rule 16(b)
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`provides that modifications to deadlines set forth in the scheduling order are only permissible
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`when the party seeking modification demonstrates “good cause.” Fed. R. Civ. P. 16(b)(4) (“A
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`schedule may be modified only for good cause and with the judge’s consent.”). Under Second
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`Circuit precedent, it is the “the Rule 16(b) ‘good cause’ standard, rather than the more liberal
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`standard of Rule 15(a), [that] governs a motion to amend filed after the deadline a district court
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`has set for amending the pleadings.” Parker v. Columbia Pictures Indus., 204 F.3d 326, 340 (2d
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`Cir. 2000).
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`What constitutes good cause? The inquiry turns on whether the moving party displayed
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`some degree of diligence in moving to amend his or her complaint. See, e.g., Kassner v. 2nd Ave.
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`Delicatessen Inc., 496 F.3d 229, 244 (2d Cir. 2007) (noting that “the primary consideration is
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`whether the moving party can demonstrate diligence”). “‘A party fails to show good cause when
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`the proposed amendment rests on information that the party knew, or should have known, in
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`advance of the deadline.” Scott v. Chipotle Mexican Grill, Inc., 300 F.R.D. 193, 197 (S.D.N.Y.
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`Case 3:13-cv-00639-JAM Document 63 Filed 02/09/15 Page 6 of 12
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`2014) (internal quotation marks omitted) (quoting Perfect Pearl Co., Inc. v. Majestic Pearl &
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`Stone, Inc., 889 F. Supp. 2d 453, 457 (S.D.N.Y. 2012)).
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`In this case, the scheduling order provided that any amended pleadings were due by July
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`1, 2013.2 Plaintiff’s motion to amend his complaint was filed nearly four months after this
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`deadline, on October 29, 2013, just a few weeks before the close of discovery. Plaintiff contends
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`that good cause exists here because he acted diligently in raising his new copyright infringement
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`claim once he became “aware of the circumstances of how Defendants obtained the photograph
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`at issue.” Doc. #33 at 3. There is no merit to this argument.
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`The disputed photograph that is the subject of the proposed additional copyright claim
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`features plaintiff himself standing next to the first Turtle replica as it was “christened” by former
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`Connecticut Governor Ella T. Grasso. The photograph was allegedly taken by plaintiff’s sister in
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`1977, and plaintiff claims that he owns the copyright to the photograph. At some point, plaintiff
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`gave a copy of the photograph to the Connecticut River Museum, allegedly “for the limited
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`purpose of displaying it in connection with an exhibit at the museum.” Doc. #43-1 at 2. The
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`museum then provided a copy of the photograph to defendants, and defendants featured the
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`photograph on the very first page of their book. Defendants’ published book credited the
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`Connecticut River Museum as the source of the photograph. Plaintiff read defendants’ book at
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`least twice before initiating this litigation, see Doc. #35-1 at 4, and he was certainly on notice of
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`the contents of the book and the citations and attributions contained therein.
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`Plaintiff claims, however, that he did not truly become aware of the manner by which
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`defendants acquired this photograph until defendants produced certain documents in September
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`2013 in connection with this litigation. But the September 2013 document production consists of
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`2 The Court’s scheduling order (Doc. #25) approved the deadlines the parties proposed in their Rule 26(f)
`report (Doc. #23), including a deadline of July 1, 2013, for the filing of any amended pleadings.
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`nothing more than a few emails between defendant Manstan and two representatives of the
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`Connecticut River Museum, and the emails simply confirm what was already clear from the very
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`first page of defendants’ book: that defendants obtained the photograph from the Connecticut
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`River Museum and credited the photograph as coming from the museum’s archives in their book.
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`See Doc. #35-2 at 2–5. This information was not new to plaintiff in the fall of 2013. To the
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`contrary, plaintiff’s belated copyright infringement claim is based on facts known—or that
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`should have been known—to plaintiff since well before the commencement of this suit.
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`Because plaintiff was not diligent in raising this new claim, the motion for leave to file an
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`amended complaint is denied. And because I deny plaintiff’s motion for leave to amend his
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`complaint to assert the copyright infringement claim based on the photograph, I deny as moot
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`plaintiff’s corresponding motion for summary judgment on this proposed claim.
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`Plaintiff’s Motion for Summary Judgment as to the CUTPA Counterclaim (Doc. #42)
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`In count two of their counterclaim, defendants Manstan and Frese assert a CUTPA claim
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`against plaintiff. See Doc. #19 at 9–18 (Defs.’ Counterclaim). In their counterclaim, defendants
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`allege that plaintiff “deceptively brought this lawsuit” based on “unsubstantiated claims of
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`copyright infringement,” and that this conduct violates CUTPA. Doc. #19 at 15. Plaintiff moves
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`for summary judgment on defendants’ CUTPA counterclaim on the ground that, as a matter of
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`law, a CUTPA counterclaim cannot be premised on allegations that the pending lawsuit is
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`vexatious or improper. Defendants oppose the motion.
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`As an initial matter, I find that a Rule 12(b)(6) motion to dismiss—and not a motion for
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`summary judgment—is the appropriate vehicle for resolving the purely legal question presented
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`by plaintiff’s motion. Summary judgment is a mechanism designed to dispose of claims where
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`the evidentiary record shows the existence of “no genuine dispute as to any material fact.” Fed R.
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`Case 3:13-cv-00639-JAM Document 63 Filed 02/09/15 Page 8 of 12
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`Civ. P. 56(a); see also Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014) (per curiam). By contrast, a
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`motion to dismiss looks to whether the complaint or counterclaim “state[s] a claim upon which
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`relief can be granted.” Fed. R. Civ. P. 12(b)(6). The role of a court reviewing a motion to dismiss
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`is to determine the legal sufficiency of the claim—that is, whether the complaint or, in this case,
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`the counterclaim sets forth a plausible basis for relief. See, e.g., Ashcroft v. Iqbal, 556 U.S. 662,
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`678 (2009); Mastafa v. Chevron Corp., 770 F.3d 170, 177 (2d Cir. 2014).
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`Plaintiff’s motion for summary judgment on defendants’ CUTPA counterclaim is
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`premised solely on the legal argument that CUTPA claims based on improper litigation conduct
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`cannot be asserted as counterclaims in the litigation that is alleged to be improper. This argument
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`is directed at the legal sufficiency of defendants’ counterclaim, and not at the factual basis for the
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`claim. Cf. Yale Univ. v. S.K.M. Rests., Inc., 2013 WL 6916623, at *5–8 (Conn. Super. Ct. 2013)
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`(where defendants asserted CUTPA counterclaim alleging that underlying litigation was
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`“improper and was undertaken in bad faith for impermissible purposes” and plaintiff moved for
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`summary judgment on counterclaim on ground that “obtaining judicial relief to enforce a legal
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`right cannot, as a matter of law, violate or offend public policy so as to give rise to CUTPA
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`liability,” the court treated plaintiff’s argument as a “challenge to the legal sufficiency of the
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`[defendants’] counterclaim” notwithstanding the fact that the motion was styled as a request for
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`summary judgment).
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`Under these circumstances, I conclude that it is appropriate to assess the motion under a
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`Rule 12(b)(6) standard. See Eastway Const. Corp. v. City of New York, 762 F.2d 243, 250 (2d
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`Cir. 1985) (“Although [the district court] relied on the affidavits submitted in support of the Rule
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`56 motion, and thus granted summary judgment, we believe it would have been equally proper to
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`dismiss the civil rights count for failure to state a claim, pursuant to Rule 12(b)(6).”), superseded
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`Case 3:13-cv-00639-JAM Document 63 Filed 02/09/15 Page 9 of 12
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`on other grounds by Fed. R. Civ. P. 11; Schwartz v. Compagnie General Transatlantique, 405
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`F.2d 270, 273 (2d Cir. 1968) (“Where appropriate, a trial judge may dismiss for failure to state a
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`cause of action upon motion for summary judgment.”); Dolce v. Suffolk Cnty., 2014 WL 655371,
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`at *3 (E.D.N.Y. 2014) (noting that defendant “styled its motion as one for summary judgment,
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`but the Court may dismiss on the basis of the pleadings alone”); Katz v. Molic, 128 F.R.D. 35, 38
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`(S.D.N.Y. 1989) (noting that a court may convert a motion for summary judgment into a motion
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`to dismiss with or without notice to parties). Having established that a motion to dismiss is the
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`appropriate method for evaluating plaintiff’s motion, I now must decide whether defendants’
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`CUTPA counterclaim sets forth a plausible basis for relief.
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`CUTPA prohibits “unfair methods of competition and unfair or deceptive acts or
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`practices in the conduct of any trade or commerce,” Conn Gen. Stat. § 42-110b(a), and it
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`“provides a private cause of action to [a]ny person who suffers any ascertainable loss of money
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`or property, real or personal, as a result of the use or employment of a [prohibited] method, act or
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`practice,” Harris v. Bradley Mem’l Hosp. & Health Ctr., Inc., 296 Conn. 315, 351, 994 A.2d 153
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`(2010) (alteration in original) (internal quotation marks and citation omitted). Although it
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`appears that no appellate court has addressed the issue, several judges of the Connecticut
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`“Superior Court ha[ve] recognized that CUTPA claims can be predicated on allegations of
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`vexatious litigation,” Am. Int’l Specialty Lines Co. v. HMT Inspections, 2011 WL 1759098, at
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`*10 (Conn. Super. Ct. 2011) (citing cases), or on allegations of “improper” or “bad faith”
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`litigation, S.K.M. Rests., Inc., 2013 WL 6916623, at *7. See also Mangs v. Cowell, 2010 WL
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`5573705, at *2 (Conn. Super. Ct. 2010) (noting that “some courts have held that a vexatious
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`lawsuit or an abuse of process can constitute an unfair trade practice sufficient to state a CUTPA
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`claim”).
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`Case 3:13-cv-00639-JAM Document 63 Filed 02/09/15 Page 10 of 12
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`The problem here, however, is that the CUTPA claim is premised on allegations of
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`vexatious litigation that are asserted as a counterclaim in the very litigation that is alleged to be
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`vexatious. Under Connecticut law, a plaintiff asserting a statutory or common law vexatious
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`litigation claim must allege that the underlying, allegedly vexatious lawsuit terminated in his or
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`her favor. Falls Church Grp., Ltd. v. Tyler, Cooper & Alcorn, LLP, 281 Conn. 84, 94, 912 A.2d
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`1019 (2007); see also Sarah Gruber, A Lawyer’s Guide to Vexatious Litigation in Connecticut,
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`88 Conn. B.J. __ (forthcoming 2015) (discussing the prior termination requirement and citing
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`cases). Accordingly, “a counterclaim alleging vexatious litigation may not be brought in the
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`same action as that which the defendant claims is vexatious.” Somers v. Chan, 110 Conn. App.
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`511, 542, 955 A.2d 667 (2008) (citing Equality, Inc. v. I–Link Commc’ns, 76 F. Supp. 2d 227,
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`229 (D. Conn. 1999)); see also Kaltman-Glasel v. Dooley, 156 F. Supp. 2d 225, 227 (D. Conn.
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`2001) (“As a necessary element of defendants’ counterclaim has not been and cannot be alleged
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`unless and until the litigation terminates in defendants’ favor, defendants’ vexatious litigation
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`counterclaim fails . . . .”).
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`The vast majority of courts to consider the issue have held that the prior termination
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`requirement for vexatious litigation cases also applies to CUTPA claims based upon allegations
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`of litigation-related misconduct. See, e.g., S.K.M. Restaurants, Inc., 2013 WL 6916623, at *7;
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`Garden Catering-Hamilton Ave., LLC v. Wally’s Chicken Coop, LLC, 2013 WL 656733, at *2
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`(D. Conn. 2013); Mangs, 2010 WL 5573705, at *3–4; Wes-Garde Components Grp., Inc. v.
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`Carling Techs., Inc., 2010 WL 1497553, at *11 (Conn. Super. Ct. 2010); Gilbert v. Beaver Dam
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`Ass’n of Stratford, Inc., 2001 WL 950864, at *4–5 (Conn. Super. Ct. 2001).
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`This approach is sound. As Judge Arterton recently noted, “[t]he same basic logic applies
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`notwithstanding the difference in the legal elements between a vexatious-litigation tort and a
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`CUTPA claim alleging that purportedly frivolous litigation is itself an unfair trade practice,”
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`because “a CUTPA claim founded on litigation must establish that the litigation itself is
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`vexatious or a sham,” but “[t]he Court . . . cannot make this determination where the litigation
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`that forms the basis for the CUTPA claim is still pending before the Court.” Garden Catering-
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`Hamilton Ave., LLC, 2013 WL 656733, at *2. Permitting CUTPA claims premised on the
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`allegation that the pending litigation is improper would “impair the presentation of honest but
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`uncertain causes of action in the courts.” Scinto v. Mariner Health Care, Inc., 1993 WL 393834,
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`at *2 (Conn. Super. Ct. 1993). Moreover, allowing such claims could create problems in the
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`attorney-client relationship, “expos[ing counsel’s] communications [with the client] to disclosure
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`due to the relevance of such communications . . . to any defense of good-faith reliance upon the
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`advice of counsel which the client might interpose.” Wes-Garde Components Grp., Inc, 2010
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`WL 1497553, at *11.
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`Notwithstanding defendants’ arguments to the contrary, the gravamen of their claim is
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`that plaintiff’s lawsuit and his litigation-related tactics violate CUTPA. Defendants argue that the
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`prior termination requirement is inapplicable here because their CUTPA counterclaim does not
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`actually use the words “vexatious litigation.” Doc. #46 at 7–8. I am not persuaded. The
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`counterclaim alleges that plaintiff’s lawsuit is deceptive, unsubstantiated, and improper, and the
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`mere fact that defendants have avoided using a particular phrase does not change the
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`fundamental nature of their allegations. See Scinto, 1993 WL 393834, at *2 (Conn. Super. Ct.
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`1993) (“While the defendants do not label the complaint a vexatious suit, that is the gist of the
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`first count of the counterclaim.”).
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`Defendants also argue that their CUTPA counterclaim is not premature to the extent that
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`it alleges that plaintiff’s “threat of litigation” was wrongful. Doc. #46 at 7. This argument might
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`Case 3:13-cv-00639-JAM Document 63 Filed 02/09/15 Page 12 of 12
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`have some merit if the “threat [of litigation] . . . caused the claimant to suffer ‘an ascertainable
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`loss of money or property[,]’ separate and apart from any loss allegedly resulting from the
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`eventual bringing of the threatened litigation itself.” Wes-Garde Components Grp., 2010 WL
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`1497553, at *11 (quoting Conn. Gen. Stat. § 42-110g). But where, as here, the threats of
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`litigation were “merely part[] of a single course of conduct culminating in [the present] lawsuit,”
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`the threat-to-sue claim is treated together with the vexatious/bad faith litigation claim as a “single
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`basis for seeking relief under CUTPA.” Id. at *12; see also Ventres v. Goodspeed Airport, LLC,
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`275 Conn. 105, 155–56, 881 A.2d 937 (2005) (offering no separate analysis of threatening to sue
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`and actually bringing suit when alleged together as basis for CUTPA claim).
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`In short, defendants’ CUTPA claim is premature. It may not be asserted until (and unless)
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`this litigation terminates in defendants’ favor. I therefore dismiss defendants’ CUTPA
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`counterclaim without prejudice to re-filing—if warranted—in a future lawsuit in the event that
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`this litigation terminates in their favor.
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`CONCLUSION
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`Defendants’ motion to post a bond is DENIED. Plaintiff’s motion for leave to file an
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`amended complaint is DENIED. Plaintiff’s motion for summary judgment on the proposed
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`additional copyright claim is DENIED AS MOOT. Plaintiff’s motion for summary judgment on
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`defendants’ CUTPA counterclaim is construed as a motion to dismiss, and the motion is
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`GRANTED and the CUTPA counterclaim is DISMISSED.
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`It is so ordered.
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`Dated at Bridgeport this 9th day of February 2015.
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`/s/ Jeffrey Alker Meyer
`Jeffrey Alker Meyer
`United States District Judge
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`12