Case 2:09-cv-03576-KDE-KWR Document 501 Filed 03/27/12 Page 1 of 15
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`UNITED STATES DISTRICT COURT
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`EASTERN DISTRICT OF LOUISIANA
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`ANNE M. PARR
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`VERSUS
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`CIVIL ACTION
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`NO. 09-3576
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`NICHOLLS STATE UNIVERSITY, ET AL.
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`SECTION “N” (1)
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`ORDER AND REASONS
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`Presently are various post-trial motions (Rec. Docs. 476, 479-80, 489,495 and 497)
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`filed by the parties to this matter. Having carefully considered the parties’ supporting and opposing
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`submissions, applicable law, and the record of this matter, the Court rules on the motions as stated
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`herein.
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`I.
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`Plaintiff's Motion for New Trial Based on Prejudicial Rulings (Rec. Doc. 479).
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`Plaintiff's "Motion for New Trial Based on Prejudicial Rulings by the Court
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`Concerning the Admission or Denial of Admission of Evidence and the Failure to Give Effect of
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`Admissions Deemed Admitted or Admitted by Judgment in State Court" is filed pursuant to Rule
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`59(a) of the Federal Rules of Civil Procedure. See Rec. Doc. 479. Rule 59(a) allows a Court to
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`grant a new trial following a trial by jury for “any reason for which a new trial has heretofore been
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`granted in an action at law in federal court.” See Fed. R. Civ. P. 59(a). Under this standard, "a new
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`trial may be granted, for example, if the district court finds the verdict is against the weight of the
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`evidence, the damages awarded are excessive, the trial was unfair, or prejudicial error was
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`1
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`Case 2:09-cv-03576-KDE-KWR Document 501 Filed 03/27/12 Page 2 of 15
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`committed in its course.'” Weckesser v. Chicago Bridge and Iron, L.G., 447 Fed. Appx. 526 (5th Cir.
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`2011) (quoting Smith v. Transworld Drilling Co., 773 F.2d 610, 613 (5th Cir. 1985). Applying these
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`standards to Plaintiff's motion, the Court finds her request for a new trial on the asserted grounds to
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`be unfounded.
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`In this motion, Plaintiff complains about certain rulings made at trial regarding the
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`admission and/or exclusion of evidence, as well as certain rulings that Plaintiff maintains the Court
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`never made. Specifically, Plaintiff contends:
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`1. The admission into evidence on February 7, 2011, unopposed by
`defendants and admitted by agreement, of every one of the four
`volumes of exhibits that were offered by plaintiff, which admission
`into evidence was memorialized in the minutes of the first day of
`trial], 1 was orally reversed by the Court after trial had begun. This
`change of position by the Court could not have been anticipated,
`could not have been prepared for, caused serious substantive
`prejudice to plaintiff, was not harmless error, and resulted in an
`adverse jury verdict. Moreover, the alternative method of admission
`imposed by the Court by testimony of witnesses resulted in
`unnecessary delay, criticism by the Court, and the exclusion of one
`or more previously admitted exhibits, such as Marcelle Bienvenu's
`notes on plaintiff's syllabus because of an inability to have a planned
`witness with personal knowledge. There were alternatives to
`exclusion of all exhibits other than those identified during testimony,
`such as designation after the close of the evidence, in order to limit
`the number of exhibits going to the jury that would have limited the
`prejudice to plaintiff, whose case was documentary in nature and also
`relied on admissions in the exhibits that defendants refused to
`stipulate.2
`2. The admission of testimony concerning results of the so-called
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`In footnote 1 of her motion, Plaintiff states: "Exhibits admitted without objection."
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`Doc. 447, pages 4-7, lists the exhibits that were admitted. Following on page 8, ¶ 2 is the proffer of
`the exhibits admitted and then unadmitted."
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`See Rec. Doc. 479, pp.1-4. Regarding Marcelle Bienvenu’s notes, the record reflects
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`that Ms. Bienvenue did testify at trial. Thus, it is unclear to the Court why being required to
`introduce Ms. Bienvenue’s notes via her testimony purportedly was prejudicial to Plaintiff.
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`2
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`Case 2:09-cv-03576-KDE-KWR Document 501 Filed 03/27/12 Page 3 of 15
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`hearing orchestrated by defendant Hulbert, which testimonial
`evidence grossly misrepresented what actually occurred, and the
`written result of this grievance hearing was prejudicial error for the
`reasons set forth in the in limine motion to exclude the same. The
`Court gave no reasons for its decision to admit this evidence.3 There
`were no substantive rulings made or substantive reasons given for the
`admission of any such evidence. Plaintiff's arguments for exclusion
`were never substantively addressed by the Court.4
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`* * *
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`The result of the grievance hearing was not final, had serious due
`process problems, and was so unduly prejudicial as to constitute the
`direction of a verdict on the non-copyright issues.5
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`3. The admission of testimony as to the result of the grievance
`hearing
`constituted a sotto voce direction of the verdict on the jury
`interrogatories other than copyright.6
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`4. The undue prejudice of the admission of testimony concerning the
`results of the grievance hearing was exacerbated because the Court
`refused to admit the Louisiana Inspector General's Report or
`testimony about his testimony. The admission of the Louisiana
`Inspector General's Report had been opposed by no one, had been
`admitted without objection on February 7, 2011,7 and there was no
`prior adverse ruling nor motion addressing its admissibility. Rather
`the only motions/orders concerned [Doc. 341/350] and the testimony
`of Thomas Boulton [Docs. 365/391], both of which motions were
`granted for reasons other than the admissibility of the Report, which
`admissibility was not challenged by any party. The Office of
`Inspector General, in its motion to quash subpoenas, stated that its
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`In footnote 2 of her motion, Plaintiff states: "See Doc. 418 in which the issue is
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`referred to trial. Admission was granted at trial but no reasons were given for the admission nor
`were any reasons given why plaintiff's objections had no merit."
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`4
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`5
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`6
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`7
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`See Rec. Doc. 479, pp.1-4.
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`See Rec. Doc. 479-1, p. 3.
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`See Rec. Doc. 479, pp. 3-4.
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`In footnote 3 of her motion, Plaintiff states: "See n.1."
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`3
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`Case 2:09-cv-03576-KDE-KWR Document 501 Filed 03/27/12 Page 4 of 15
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`report was public record and not privileged. To the extent that the
`Court excluded it or any testimony about the investigation, this was
`done on the Court's own motion and without the defendants or the
`Office of Inspector General raising the issue of admissibility.8
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`5. There was a failure to give effect to the admissions made in state
`court, as to which the Court requested briefing [Doc. 128], which
`briefing was filed, pending, and never substantively ruled on, and to
`the admissions made in this Court as to copyright and equal pay. The
`defendants, on account of their failure to timely respond in state court
`and in this Court, admitted facts, the effect of which was never
`sought to be withdrawn, as to which the Court did not give the effect
`mandated by Rule 36.9
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`First, regarding Plaintiff's objection to the procedure ordered by the Court relative
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`to the introduction of exhibits into evidence, the Court notes that is charged with exercising
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`reasonable control over the mode and order of examining witnesses and presenting evidence so as
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`to: (1) make those procedures effective for determining the truth; (2) avoid wasting time; and (3)
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`protect witnesses from harassment or undue embarrassment. See Fed. R. Evid. 611 (a). Although
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`Plaintiff inexplicably has not provided a transcript of the pertinent trial proceedings in connection
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`with her motion, the Court, in imposing the procedure about which Plaintiff complains, explained
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`why it was being imposed. In short, the Court sought to fulfill its obligations under Rule 611(a),
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`and to avoid having the jury consider the hundreds, if not thousands, of pages of documents for
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`which the relevancy and necessity were not obvious that Plaintiff sought to introduce absent any
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`evidentiary explanation of their relevance by means of party stipulation or testimony of a witness
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`8
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`9
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`See Rec. Doc. 479, pp 1-4.
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`See Rec. Doc. 479, pp.1-4.
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`4
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`Case 2:09-cv-03576-KDE-KWR Document 501 Filed 03/27/12 Page 5 of 15
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`with personal knowledge.10
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`With respect to Plaintiff's second contention, the Court again notes that Plaintiff has
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`not provided a trial transcript in connection with her motion. As such, the Court has no reason to
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`conclude that the basis for any of its trial rulings was insufficiently clear. Nor is a new trial
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`warranted simply because a party believes that an evidentiary ruling is erroneous.
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`On the showing made, Plaintiff’s third contention likewise fails. To the extent that
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`a party or counsel is concerned during the course of a trial that the jury might inappropriately
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`construe a remark by the presiding judge as asserting an opinion regarding a matter to be decided
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`by the jury, it is the duty of counsel to so notify the Court. The undersigned recalls no such
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`assertion being made by counsel during the trial of this matter. Further, the Court instructs the jury,
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`more than once during trial, that the jury is the finder of facts and that, in making those findings, the
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`jury is to disregard anything the Court may have said except for instructions on the law. In any
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`event, without the benefit of citation to the trial transcript, the Court has no basis for determining
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`that any error occurred.
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`Plaintiff's fourth contention also warrants no relief. The Court again reminds Plaintiff
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`that it is the Court's duty to render rulings regarding the admission of evidence and again notes
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`Plaintiff's failure to include a trial transcript in her submission. Further, as previously stated, a new
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`trial is not warranted simply because a party believes an evidentiary ruling made at trial to be
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`Defendants' opposition memorandum contests Plaintiff's assertion that they were not
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`opposed, at trial, to Plaintiff's introduction "of every one of the four volumes of exhibits that were
`offered by plaintiff." See Defendant's opposition memorandum (Rec. Doc. 487) at pp. 6-7. However,
`even were Plaintiff correct about a "lack of opposition" from Defendants, the Court remains
`obligated by Rule 611.
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`5
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`Case 2:09-cv-03576-KDE-KWR Document 501 Filed 03/27/12 Page 6 of 15
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`erroneous.
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`Finally, regarding Plaintiff's fifth contention, the record reflects that the Court denied
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`the motions in support of which Plaintiff had submitted the disputed admissions, and memorialized
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`those rulings in record documents 186 and 189.
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`For the foregoing reasons, the Court, having carefully considered the parties'
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`submissions, finds Plaintiff's motion for a new trial to be without merit. Accordingly, IT IS
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`ORDERED that the motion (Rec. Doc. 479) is DENIED.
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`II.
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`Plaintiff's "Renewed Motion for New Trial Restricted to the Jury Verdict on
`Copyrightability and for Reconsideration of the Denial of Plaintiff's Motion for
`Summary Judgment on Copyright [DOC. 21]" (Rec. Doc. 489)
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`Plaintiff also has filed a motion seeking a new trial pursuant to Rule 59(e) of the
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`Federal Rules of Civil Procedure. Her motion is directed at the adverse jury verdict rendered on her
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`copyright claim. She also seeks reconsideration of her summary judgment motion regarding that
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`claim. See Rec. Doc. 489.
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`In deciding a Rule 59(e) motion, the Court must balance (1) the need to bring
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`litigation to an end, and (2) the need to render just decisions on the basis of all of the facts. Lines v.
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`Fair Ins. Co., 2010 WL 4338636, *1 (E.D. La. Oct. 21, 2010)(Engelhardt, J.)(citing Lavespere v.
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`Niagara Mach. & Tool Works, Inc., 910 F.2d 167, 174 (5th Cir.1990), abrogated on other grounds
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`by Little v. Liquid Air Corp., 37 F.3d 1069, 1075-76 (5th Cir.1994)). Thus, Rule 59(e) relief may
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`be appropriate (1) where there has been an intervening change in the controlling law; (2) where the
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`movant presents newly discovered evidence that previously was unavailable; (3) to correct a
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`manifest error of law or fact, or (4) to prevent manifest injustice. Schiller v. Physicians Res. Group,
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`6
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`Case 2:09-cv-03576-KDE-KWR Document 501 Filed 03/27/12 Page 7 of 15
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`Inc., 342 F.3d 563, 567 (5th Cir. 2003); see also Rosenblatt v. United Way of Greater Houston, 607
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`F.3d 413, 419 (5th Cir. 2010); Marseilles Homeowners Condo. Ass'n, Inc. v. Fidelity Nat'l Ins. Co.,
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`542 F.3d 1053, 1058 (5th Cir. 2008) (“A motion to alter or amend the judgment under Rule 59(e)
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`‘must clearly establish either a manifest error of law or fact or must present newly discovered
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`evidence.’”); Templet v. HydroChem, Inc., 367 F.3d 473, 479 (5th Cir. 2004) (a Rule 59(e) motion
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`“serves the narrow purpose of allowing a party to correct manifest errors of law or fact or to present
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`newly discovered evidence”); Rosenzweig v. Azurix Corp., 332 F.3d 854, 864 (5th Cir. 2003) (“[A]
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`motion to alter or amend the judgment under Rule 59(e) must clearly establish either a manifest error
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`of law or fact or must present newly discovered evidence and cannot be used to raise arguments
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`which could, and should, have been made before the judgment issued.”) (internal quotations
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`omitted). "Reconsideration of a judgment after its entry[, however,] is an extraordinary remedy that
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`should be used sparingly." Pechon v. Louisiana Dept. of Health and Hosps., 368 Fed. Appx. 606,
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`611, 2010 WL 774178 * 2, n. 16 (5th Cir. 2010)(citing Templet, 367 F.3d at 479)); Peterson v.
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`Cigna Group Ins., 2002 WL 1268404, at *1 (E.D. La. June 5, 2002)(Duval, J.).
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`Plaintiff urges three grounds in support of this motion. Applying the foregoing
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`standards, the Court concludes that none of Plaintiff's three asserted grounds warrant the
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`extraordinary remedy of setting aside the Court's judgment and the jury's verdict.
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` First, Plaintiff complains that, pursuant to Rule 56(a) of the Federal Rules of Civil
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`Procedure, the parties were entitled to, but did not receive, pre-trial rulings that included statements
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`"'on the record' of the [Court's] reasons for granting or denying'" the parties' copyright motions for
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`summary judgment (Rec. Docs. 197 and 201). With respect to this argument, the Court notes that
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`7
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`Case 2:09-cv-03576-KDE-KWR Document 501 Filed 03/27/12 Page 8 of 15
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`in certain instances, rulings on summary judgment motions warrant a comprehensive, extensive
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`statement of the Court's reasons for denying or granting the motion. In others, however, such
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`rulings, especially rulings denying summary judgment because of material factual issues, rather than
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`granting it, do not. And to suggest otherwise, the Court believes, misstates the law.
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` In this instance, regarding the copyright claim and defenses, the Court concluded,
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`after much consideration of the parties's written submissions, that neither side had borne the burden
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`imposed by Rule 56 of demonstrating the absence of a genuine issue of material fact and entitlement
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`to judgment as a matter of law. And, given the history of this litigation, particularly including the
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`overall unproductive nature of the parties' motion practice submissions (written and oral),11 and that
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`trial preparations were complete, with the trial about to commence, the Court did not find any
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`additional statement of reasons for the record to be a necessary or prudent use of limited resources.
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`Accordingly, the Court having previously advised the parties off of the record (via telephone
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`conference) of its rulings, just before trial began, simply announced the rulings for the record on the
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`first day of trial. See Court's February 7, 2011 Minute Entry (Rec. Doc. 439). The Court does not
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`find this decision to justify a new trial.
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`See, e.g., March 3, 2011 Order and Reasons (Rec. Doc. 464) at p. 2, n.2 ("The record
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`of this action contains an over 400 filings. Further, many of those submissions are unnecessarily
`voluminous. For example, Plaintiff’s opposition to Defendants’ Equal Pay Act motion for summary
`judgment purports to consist of twelve separate record filings, totaling more than 1,000 pages of
`memoranda and exhibits. See Rec. Docs. 218, 385. Similarly, Plaintiff filed three opposition
`memoranda responsive to Defendant’s “Motion for Partial Summary Judgment Under 42 U.S.C.
`§1983, Title VII and Title IX.” See Rec. Docs. 226, 287-88, and 330. And, as the Court has
`previously noted, Plaintiff submitted at least six different opposition memoranda in response to a
`motion in limine. See Rec. Doc. 397.")
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`Case 2:09-cv-03576-KDE-KWR Document 501 Filed 03/27/12 Page 9 of 15
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`Second, Plaintiff urges the granting of a new trial because she contends that the issue
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`of the "copyrightability" of Food and Culture of the American South was submitted to the jury rather
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`than being properly decided, prior to trial, by the Court. Again, the Court disagrees. The jury would
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`not have been asked render a verdict regarding the copyright claims and defenses if the Court did
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`not find at least certain aspects of Plaintiff's work to be copyrightable subject matter. In any event,
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`a review of the record reveals that the jury here was charged with deciding only the issues that the
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`parties sought to have it decide, and that the jury was carefully instructed regarding the requisite
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`elements of the claim and defenses, taking into consideration (as did the parties) applicable
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`jurisprudence, the Seventh and Ninth Circuits' pattern jury instructions, and the parties' proposed
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`jury instructions. See, e.g., Amazing Spaces, Inc. v. Metro Mini Storage, 608 F.3d 225, 251 (5th Cir.
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`2010) (to establish copyright infringement, a plaintiff must prove that he owns a valid copyright and
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`that the defendant copied elements of the plaintiff's work that are original); see also Court's Revised
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`Jury Verdict Form (Rec. Doc. 447); Plaintiff’s proposed jury verdict forms regarding her copyright
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`claims (Rec. Docs. 310 and 408); Court's Jury Instructions, a copy of which is attached hereto as
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`Exhibit A); Plaintiff’s Requested Jury Copyright Jury Charges, including Nos.1, 7-10 (Rec. Doc.
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`412); Seventh Circuit Model Jury Instructions, including 12.2.1, 12.3.1, 12.4.1- 4.3; Ninth Circuit
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`Model Jury Instructions, including 17.4, 17.5, 17.8-17.9, and 17.12.
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`Significantly, Plaintiff does not point to record evidence establishing that she
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`preserved an objection at trial to particular language addressing her copyright claim that was
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`included in the revised jury verdict form signed by the jury foreperson, or the Court's jury
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`instructions. Rather, at trial, Plaintiff made no objections to the jury verdict form or the Court's
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`Case 2:09-cv-03576-KDE-KWR Document 501 Filed 03/27/12 Page 10 of 15
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`instructions to the jury regarding the applicable substantive law.12 If anything, Plaintiff's proposed
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`first jury verdict form question, asking whether the jury found Plaintiff's syllabus and other materials
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`to constitute "original intellectual work appropriate for copyright protection," is arguably broader
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`than the first question utilized by the Court, asking whether the jury found "a valid copyright exists
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`. . . and, if so, that [Plaintiff] is the owner of that copyright." See Rec. Doc. 447, at p. 12; Rec. Docs.
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`310 and 408). Indeed, the Plaintiff requested a trial by jury on “all issues.” See Rec. Doc. 42.
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` Lastly, Plaintiff maintains that copyright registration certificates issued to Plaintiff
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`subsequent to the completion of the February 2011 jury trial, with retroactive effective dates of May
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`21, 2009 and May 10, 2010, render the jury verdict on her copyright claim "wrong as a matter of
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`law" and require a new trial on the copyright claim and defenses. In support of this contention,
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`Plaintiff cites to authorities establishing that the effective date of a copyright registration is the date
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`that the copyright application, deposit, and fee were received in the office of the Register of
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`Copyrights and that, in judicial proceedings, a certificate of a registration made before or within five
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`years after first publication of the work constitutes "prima facie evidence of the validity of the
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`copyright and the facts stated in the certificate." See 17 U.S.C. § 410(a-d). She additionally cites
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`Cosmetic Ideas, Inc. v. IAC/Interactive Corp., 606 F.3d 612, 616 (9th Cir. 2010) for the proposition
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`that this "rule even applies when notice of registration is provided on appeal."
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`While the Court does not disagree with Plaintiff's supporting citations of authority,
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`the same is not true with respect to Plaintiff's contention that those authorities require that the Court
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`See February 15, 2011 Minute Entry (Rec. Doc. 446) (reflecting only "Objections
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`by Plaintiff to the Pretrial Procedures in this Case" (Rec. Doc. No. 436)).
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`Case 2:09-cv-03576-KDE-KWR Document 501 Filed 03/27/12 Page 11 of 15
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`set aside the jury's verdict regarding Plaintiff's copyright claim and order a new trial of the claim and
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`the defenses thereto. Here, less than a month after Plaintiff submitted an application for copyright
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`registration on or about April 28, 2009, presumably not knowing if and when a registration
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`certificate ultimately would be issued, she elected to file the instant lawsuit on May 18, 2009.
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`Thereafter, she sought to have her copyright claims decided in court by means of motion practice
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`and trial. If Plaintiff had received her certificates of copyright registration prior to the jury
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`rendering a verdict in this matter, on February 16, 2011,13 Plaintiff would have had the benefit of
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`a rebuttable presumption regarding her ownership of a valid copyright. Unfortunately for Plaintiff,
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`however, she did not.14
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`Significantly, despite being aware of the legal advantage that having a copyright
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`registration certification would have given her in this lawsuit, Plaintiff points to no measures taken
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`by her to ensure that the Register of Copyrights would have completed the registration review
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`process prior to her copyright claim filed in this Court being determined on the merits. For instance,
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`Plaintiff apparently did not request expedited consideration by the Register of Copyrights of her
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`application. Nor, once in court, did she request to have the proceeding stayed as to her copyright
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`claim until such time as the Register of Copyright had reviewed and determined her application for
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`copyright registration.
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`13
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`See February 16, 2011 Minute Entry (Rec. Doc. 447).
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`Plaintiff apparently did not receive notice of her certificates of copyright registration
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`being issued until on or about March 7, 2011. See Plaintiff's supporting memorandum (Rec. Doc.
`489-1) at p. 9.
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`11
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`Case 2:09-cv-03576-KDE-KWR Document 501 Filed 03/27/12 Page 12 of 15
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`Under these circumstances, Plaintiff cannot be allowed to have the seven-day jury
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`trial conducted in this matter, at her request, constitute little more than a "trial run" of her copyright
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`infringement action. The Court does not read 17 U.S.C. § 410, cited by Plaintiff, to command such
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`a result, and Plaintiff has not provided any authority interpreting the statute to the contrary. The
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`same is true with respect to the Ninth's Circuit decision in Cosmetic Ideas, Inc. There, the plaintiff
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`was going to have the benefit of a registration certificate "post-appeal" because, significantly, that
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`plaintiff's lawsuit had been erroneously dismissed by the district court for lack of subject matter
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`jurisdiction. See Cosmetic Ideas, Inc., 606 F.3d at 616. Indeed, by the time the Ninth Circuit
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`rendered its decision, the plaintiff had received a registration certificate, and filed a second lawsuit,
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`which was then stayed pending the appeal of the dismissal of the first lawsuit. Id. at 615, n.1. Thus,
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`the Court finds Cosmetic Ideas, Inc., readily distinguishable from the instant matter.
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`Given the foregoing, the Court finds that Plaintiff has demonstrated nothing more
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`than that she is disappointed with the jury's verdict regarding her copyright claims and would like
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`a "second bite at the apple." She certainly has not shown entitlement to the extraordinary relief of
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`a new trial. Accordingly, IT IS ORDERED that Plaintiff's request for a new trial of her copyright
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`claim and reconsideration of the Court's denial of her summary judgment motion as to that claim
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`(Rec. Doc. 489) is DENIED.
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`III.
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`Plaintiff's Motion for Reconsideration of Summary Judgment for Defendants on the
`Equal Pay Act Claims and Title VII and 1983 Claims for Gender, Nationality, and
`Religion (Rec. Doc. 480)
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`Plaintiff also has filed a motion (Rec. Doc. 480) seeking reconsideration of the
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`Court's summary judgment ruling dismissing certain of Plaintiff’s claims under the Equal Pay Act,
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`29 U.S.C. §206(d), Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e, et seq., and 42
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`U.S.C. §1983 (Rec. Doc. 464). Plaintiff's motion for reconsideration is likewise considered under
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`Rule 59(e). Peterson, 2002 WL 1268404, at *1 (E.D. La. June 5, 2002)(citing St. Paul Mercury Ins.
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`Co. v. Fair Grounds Corp., et al., 123 F.3d 336, 339 (5th Cir. 1997) (motion to alter or amend under
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`Rule 59(e) is proper motion to contest summary judgment)); Patin v. Allied Signal Inc., 77 F.3d
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`782, 785 n. 1 (5th Cir.1990)(motion to reconsider entry of summary judgment properly styled a Rule
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`59(e) motion); Lavespere, 910 F.2d at 175 (motion that challenges prior summary judgment filed
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`within 10 days of judgment is brought under Rule 59(e)).
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` A request for reconsideration of a summary judgment ruling may not be used to re-
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`hash evidence, legal theories, or arguments that either were or could have been offered or raised
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`before the entry of judgment. Lines v. Fair Ins. Co., 2010 WL 4338636, *1 (E.D. La.
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`10/21/2010)(Engelhardt, J.) (citing Simon v. United States, 891 F.2d 1154, 1159 (5th Cir.1990));
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`Peterson, 2002 WL 1268404, at *1 (Rule 59(e) should not be used to re-litigate prior matters that
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`have been resolved to the movant's dissatisfaction). Because this is solely what Plaintiff's motion
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`attempts to accomplish, IT IS ORDERED that the motion is DENIED.
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`IV.
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`Defendants' Motion for Payment of Attorneys Fees (Rec. Doc. 476)
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`With this motion, Defendants seek an award of attorney's fees, as the "prevailing
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`party," pursuant to 42 U.S.C. §1988. Such an award, however, is not automatically provided to
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`every prevailing defendant. Rather, a successful defendant must show that the plaintiff's claim was
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`“frivolous, unreasonable, or groundless.” Myers v. City of West Monroe, 211 F.3d 289, 292 (5th
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`Cir.2000) (quoting Walker v. City of Bogalusa, 168 F.3d 237, 239 (5th Cir.1999)); Fontenot v.
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`Toups, 2011 WL 677345, *5 (E.D. La. Feb. 16, 2011). As set forth in Offord v. Parker, No.
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`11–20086, 2012 WL 13929, *1 (5th Cir. 2012)(summary calendar), district courts are to consider
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`certain factors in making this decision: "(1) whether the plaintiff established a prima facie case; (2)
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`whether the defendant offered to settle, and (3) whether the court held a full trial." Further, district
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`courts:
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`Id.
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`must "resist the understandable temptation to engage in post hoc
`reasoning by concluding that, because a plaintiff did not ultimately
`prevail, his action must have been unreasonable or without
`foundation.” Christiansburg Garment Co. v. E.E.O.C., 434 U.S. 412,
`421, 98 S. Ct. 694, 54 L.Ed.2d 648 (1978). Instead, a court must ask
`whether “‘the case is so lacking in arguable merit as to be groundless
`or without foundation rather than whether the claim was ultimately
`successful.’” Stover v. Hattiesburg Pub. Sch. Dist., 549 F.3d 985, 997
`(5th Cir. 2008).
`
`Here, although Defendants did prevail relative to Plaintiff's claims asserted under 42 U.S.C.
`
`§1988, the Court, having considered the above-referenced factors, does not find the claims to have
`
`been "frivolous, unreasonable, or groundless." Accordingly, IT IS ORDERED that Defendants'
`
`motion is DENIED.
`
`14
`
`

`
`Case 2:09-cv-03576-KDE-KWR Document 501 Filed 03/27/12 Page 15 of 15
`
`V.
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`Plaintiff's Motions Seeking Leave to File Memoranda (Rec. Docs. 495 and 497).
`
`Because Plaintiff's proposed memorandum responds to certain assertions set forth in
`
`Defendants' opposition memorandum (Rec. Doc. 496), IT IS ORDERED that Plaintiff's motion
`
`(Rec. Doc. 497) seeking leave to file a reply memorandum in support of her motion for new trial
`
`regarding copyrightability is GRANTED. Plaintiff's motion (Rec. Doc. 495) seeking leave to file
`
`a supplemental memorandum in support of her motion for reconsideration of the Court's rulings
`
`regarding Plaintiff's Equal Pay Act claim (Rec. Doc. 480), however, is DENIED. With that motion,
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`Plaintiff seeks only to provide information and argument that either have been, or should have been,
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`submitted numerous times.
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`New Orleans, Louisiana, this 27th day of March 2012.
`
`_____________________________________
`UNITED STATES DISTRICT JUDGE
`
`15