Case 1:20-cv-01360-SJB Document 85 Filed 08/11/23 Page 1 of 8 PageID #: 1732
`
`
`
`
`
`
`
`Plaintiff,
`
`
`
`
`
`
`
`MEMORANDUM & ORDER
`20-CV-1360 (MKB)
`
`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF NEW YORK
`---------------------------------------------------------------
`MMS TRADING COMPANY PTY LTD., an
`Australian Company d/b/a Connetix Tiles,
`
`
`
`
`
`
`
`
`
`v.
`
`
`HUTTON TOYS, LLC, a New York limited liability
`company,
`
`Defendants.
`
`
`
`
`---------------------------------------------------------------
`MARGO K. BRODIE, United States District Judge:
`
`Plaintiff MMS Trading Company Pty Ltd. commenced the above-captioned action
`
`against Defendant Hutton Toys LLC, among others,1 on March 13, 2020, alleging that Defendant
`
`fraudulently filed a copyright infringement complaint against Plaintiff on Amazon.com based on
`
`an invalid copyright in magnetic tile toys, resulting in the removal of Plaintiff’s product from
`
`Amazon and a loss of sales and goodwill. (Compl. ¶ 1, Docket Entry No. 1.) On March 6, 2023,
`
`the Court granted in part and denied in part the parties’ summary judgment motions (“March
`
`2023 Decision”). (Mar. 2023 Decision, Docket Entry No. 75.) On April 5, 2023, Plaintiff filed a
`
`letter motion for reconsideration styled as a motion for clarification of the Court’s opinion. (Pl.’s
`
`Letter Mot. for Clarification (“Pl.’s Mot.”), Docket Entry No. 79.) For the reasons set forth
`
`below, the Court denies Plaintiff’s motion.
`
`
`1 The Complaint also named 18th Avenue Toys Ltd. and Yaacov Schwartz as
`defendants, but they are no longer parties to the case. (Stipulation of Dismissal, Docket Entry
`No. 12.)
`
`
`

`

`Case 1:20-cv-01360-SJB Document 85 Filed 08/11/23 Page 2 of 8 PageID #: 1733
`
`I. Background
`
`In the March 2023 Decision, the Court denied Plaintiff’s motion for summary judgment
`
`on its copyright invalidity claim. The Court found that Defendant had established a rebuttable
`
`presumption that its copyright was valid and original. (Mar. 2023 Decision 8–11.) The Court
`
`further found that Plaintiff failed to rebut the presumption because although there was a disputed
`
`issue of material fact regarding whether the copyright was “purely” functional, the Court did not
`
`find that there was a dispute regarding its originality or that the copyright was invalidated
`
`because the subject matter was identical to a prior design patent. (Id. at 11–22.)
`
`With respect to Defendant’s cross-motion for summary judgment on Plaintiff’s copyright
`
`invalidity claim, the Court found that Defendant presented evidence of a valid copyright and
`
`therefore, the burden of overcoming the presumption of validity shifted to Plaintiff to be
`
`rebutted. (Id. at 28–31.) The Court found that Plaintiff failed to show that the copyright was
`
`invalid because Plaintiff did not show that the Defendant failed to disclose material facts to the
`
`copyright office or that Defendant misled the copyright office. (Id.)
`
` On April 5, 2023, Plaintiff filed the motion seeking clarification of the Court’s decision
`
`denying Plaintiff’s motion for summary judgment on its copyright invalidity claim, granting
`
`Defendant’s motion for summary judgment on the same claim and allowing the copyright
`
`infringement and noninfringement claims to proceed to trial. (Pl.’s Mot.) Specifically, Plaintiff
`
`argues that because the Court found that a factual dispute regarding the functionality of
`
`Defendant’s allegedly infringing work precluded summary judgment in favor of Plaintiff on the
`
`copyright invalidity claim, then the Court should have also denied summary judgment to
`
`Defendant on the same claim and for the same reason. (Id.)
`
`2
`
`

`

`Case 1:20-cv-01360-SJB Document 85 Filed 08/11/23 Page 3 of 8 PageID #: 1734
`
`In opposing Plaintiff’s application, Defendant argues that (1) the letter motion is untimely
`
`under Local Rule 6.3 and Rule 59 of the Federal Rules of Civil Procedure; (2) Rule 60(a) is
`
`inapplicable because the ruling does not contain any “clerical errors;” and (3) Rule 60(b) is
`
`inapplicable because the ruling was not a final judgment and because Plaintiff cannot otherwise
`
`show that Rule 60(b) applies. (Def.’s Reply in Opp’n to Pl.’s Mot. (“Def.’s Opp’n”) 1–3, Docket
`
`Entry No. 80.) In addition, Defendant argues that the Court did not err in its analysis. (Id.)
`
`II. Discussion
`
`The Court denies Plaintiff’s motion as untimely under the Federal Rules of Civil
`
`Procedure and the Local Rules. In addition, the Court denies Plaintiff’s motion on the merits.
`
`a. Plaintiff’s motion is procedurally untimely
`
`Plaintiff does not cite any Federal Rule of Civil Procedure as a basis for its letter but
`
`simply calls it a motion for clarification. Defendant argues that Plaintiff’s motion is untimely
`
`because: (1) “[a] motion for relief under Rule 59(e) must be brought within 28-days of the entry
`
`of the judgment being challenged,” and (2) “under Local Rule 6.3, . . . notice of motion for
`
`reconsideration or reargument of a court order determining a motion shall be served within
`
`fourteen days after the entry of the court’s order resulting in judgment.” (Id. at 2.) Defendant
`
`notes that Plaintiff’s letter motion was filed after the deadlines passed and therefore is untimely.
`
`(Id.) In addition, Defendant argues that Rule 60(a) is inapplicable because the Court’s March
`
`2023 Decision does not contain any clerical errors and reflects the Court’s intent. (Id.)
`
`First, Plaintiff’s letter is untimely under Rule 59 and Local Rule 6.3. Under Rule 59(e),
`
`“[a] motion to alter or amend a judgment must be filed no later than [twenty-eight] days after the
`
`entry of the judgment.” Fed. R. Civ. P. 59(e). Under Local Rule 6.3, a notice of motion for
`
`reconsideration must be filed within fourteen days after the entry of the order. Plaintiff filed the
`
`3
`
`

`

`Case 1:20-cv-01360-SJB Document 85 Filed 08/11/23 Page 4 of 8 PageID #: 1735
`
`letter on April 5, 2023, thirty days after the Court’s March 6, 2023 ruling. Therefore, Plaintiff’s
`
`letter motion was untimely under both Rule 59(e) and Local Rule 6.3. See, e.g., Siino v. City of
`
`New York, No. 14-CV-7217, 2021 WL 6063610, at *3 (E.D.N.Y. Dec. 21, 2021) (denying as
`
`untimely pro se plaintiff’s motion to reconsider which was filed twenty-six days after the order
`
`was entered); Bennett v. Care Corr. Sol. Med. Contracted, No. 15-CV-3746, 2017 WL 4250519,
`
`at *2 (S.D.N.Y. Sept. 25, 2017) (denying as untimely plaintiff’s seven-day-late motion for
`
`reconsideration and collecting cases).
`
`Second, Rule 60(a) does not apply. Rule 60(a) states, “[t]he court may correct a clerical
`
`mistake or a mistake arising from oversight or omission whenever one is found in a judgment,
`
`order, or other part of the record.” Fed. R. Civ. P. 60(a); Wang v. Int’l Bus. Machs. Corp., 839 F.
`
`App’x 643, 645 (2d Cir. 2021) (same). “Rule 60(a) ‘is not meant to provide a way for parties to
`
`. . . charge errors in what a court has deliberately done.’” PDV Sweeny, Inc. v. ConocoPhillips
`
`Co., No. 14-CV-5183, 2015 WL 9413880, at *2 (S.D.N.Y. Dec. 21, 2015), aff’d, 670 F. App’x
`
`23 (2d Cir. 2016) (quoting Emp’rs Mut. Cas. Co. v. Key Pharm., Inc., 886 F. Supp. 360, 363
`
`(S.D.N.Y. 1995)); see also 11 Charles Alan Wright et al., Federal Practice and Procedure §
`
`2854 (3d ed. 2012) (“Errors of a more substantial nature are to be corrected by a motion under
`
`Rules 59(e) or 60(b).”). Plaintiff does not allege any clerical error because there are none. As
`
`Defendant argues, the Court found that Plaintiff failed to establish the invalidity of the ‘106
`
`Copyright because Defendant established a rebuttable presumption of the validity of the
`
`copyright; and Plaintiff failed to rebut that presumption.
`
`Third, Rule 60(b) does not apply. Pursuant to Rule 60(b),
`
`[o]n motion and just terms, the court may relieve a party or its legal
`representative from a final judgment, order, or proceeding for the
`following reasons: (1) mistake, inadvertence, surprise, or excusable
`neglect; (2) newly discovered evidence that, with reasonable
`
`4
`
`

`

`Case 1:20-cv-01360-SJB Document 85 Filed 08/11/23 Page 5 of 8 PageID #: 1736
`
`diligence, could not have been discovered in time to move for a new
`trial under Rule 59(b); (3) fraud (whether previously called intrinsic
`or extrinsic), misrepresentation, or misconduct by an opposing
`party; (4) the judgment is void; (5) the judgment has been satisfied,
`released, or discharged; it is based on an earlier judgment that has
`been reversed or vacated; or applying it prospectively is no longer
`equitable; or (6) any other reason that justifies relief.
`
`Fed. R. Civ. P. 60(b). Rule 60(b) only applies to final judgments. See Transaero, Inc. v. La
`
`Fuerza Aerea Boliviana, 99 F.3d 538, 541 (2d Cir.1996) (“By its own terms, Rule 60(b) applies
`
`only to judgments that are final.”). An order denying in part and granting in part the parties’
`
`motions for summary judgment is not final. See United States v. 228 Acres of Land, 916 F.2d
`
`808, 811 (2d Cir. 1990) (“An order that denies summary judgment or grants partial summary
`
`judgment cannot by itself be the basis for an appeal, since it is nonfinal.”); Williams v. Cnty. of
`
`Nassau, 779 F. Supp. 2d 276, 280 n.2 (E.D.N.Y. 2011), aff’d, 581 F. App’x 56 (2d Cir. 2014)
`
`(same). In addition, none of the Rule 60(b) grounds apply. Plaintiff does not argue that there is
`
`newly discovered evidence, fraud, or new law requiring reconsideration of the Court’s decision.
`
`Therefore, Plaintiff’s motion is untimely under the Federal Rules of Civil Procedure and
`
`the Local Rules, and Rule 60(b) does not apply to Plaintiff’s motion.
`
`b. Plaintiff’s motion also fails on the merits
`
`Plaintiff argues that the March 2023 Decision is inconsistent as it relates to the parties’
`
`motions for summary judgment on Plaintiff’s copyright infringement claim. In support, Plaintiff
`
`argues that because the Court found that “there is a genuine issue of material fact concerning the
`
`functional element portion of Plaintiff’s motion for summary judgment,” with regard to
`
`Plaintiff’s copyright invalidity claim, then that means “this issue also exists concerning
`
`Defendant’s motion for summary judgment on Plaintiff’s copyright invalidation claim.” (Pl.’s
`
`Mot. 3.) Plaintiff argues that “it is also possible that a reasonable juror could identify the product
`
`as not containing [artistic] qualities” such that its copyright invalidation claim should be allowed
`
`5
`
`

`

`Case 1:20-cv-01360-SJB Document 85 Filed 08/11/23 Page 6 of 8 PageID #: 1737
`
`to proceed. (Id. at 2–3.)
`
`Defendant argues that Plaintiff “fails to show that the [March 2023 Decision] did not
`
`accurately reflect the Court’s intent or that it is inconsistent or otherwise confusing.” (Def.’s
`
`Opp’n 3.) In support, Defendant argues that the Court found that Plaintiff failed to establish the
`
`invalidity of the ‘106 Copyright because Defendant had established a rebuttable presumption of
`
`the validity of the copyright and Plaintiff failed to rebut that presumption. (Id.) Further, “[w]hen
`
`the Court turned its attention to [Defendant’s motion for summary judgment], it found that
`
`[Defendant] had established it owned a valid copyright and that Plaintiff had failed to come
`
`forward with sufficient facts to rebut the validity of the copyright.” (Id.)
`
`In the March 2023 Decision, the Court considered whether the Defendant’s work was
`
`purely functional with respect to Plaintiff’s motion for summary judgment on Plaintiff’s
`
`copyright invalidity claim. (Mar. 2023 Decision 11–14.) Plaintiff argued in its motion for
`
`summary judgment that when the functional elements of Defendant’s work are “discounted, no
`
`independent original work of authorship with even a minimal degree of creativity exists” because
`
`all that remains are “simple geometric shapes” which are not protectible. (Pl.’s Mem. in Supp. of
`
`Mot. for Summ. J. (“Pl.’s Mem.”) 12, 14, Docket Entry No. 70.) As the Court found in the
`
`March 2023 Decision, this is incorrect. The Court found that even though the functional
`
`elements of the product were disputed, that did not mean that the copyright was unoriginal. The
`
`Court concluded this on the basis that (a) there was insufficient evidence in the record
`
`demonstrating that similar sculptural works existed in the public domain at the time the ‘106
`
`Copyright was registered or when the Shape Mags product first debuted in the market; (b) even if
`
`there was evidence of similarly existing works, the ‘106 Copyright could still be original so long
`
`as it was not copied, see Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340,
`
`6
`
`

`

`Case 1:20-cv-01360-SJB Document 85 Filed 08/11/23 Page 7 of 8 PageID #: 1738
`
`345 (1991) (“Originality does not signify novelty; a work may be original even though it closely
`
`resembles other works so long as the similarity is fortuitous, not the result of copying.”); (c) the
`
`requisite level of creativity required to demonstrate originality is minimal, see Acuff-Rose Music,
`
`Inc. v. Jostens, Inc., 155 F.3d 140, 143 (2d Cir. 1998) (“Original, as the term is used in
`
`copyright, means only that the work was independently created by the author (as opposed to
`
`copied from other works), and that it possesses at least some minimal degree of creativity.”); and
`
`(d) Plaintiff’s argument that Defendant’s prior existing design patent invalidated the ‘106
`
`Copyright was legally wrong, see Mechanical Plastics Corp. v. Titan Technologies, Inc., 823 F.
`
`Supp. 1137, 1142 (S.D.N.Y. 1993) (“A product’s different aspects can be protected
`
`simultaneously by more than one of the statutory means for the protection of intellectual
`
`property.”).
`
`Plaintiff was required to rebut the presumption of originality and validity by showing
`
`both that the Defendant’s product was not original and contained only functional elements. Even
`
`though the Court found there was a genuine issue of material fact regarding which elements were
`
`functional, Plaintiff failed to rebut the presumption of originality. Therefore, Defendant’s
`
`product was presumptively valid and Plaintiff’s motion for summary judgment on its own
`
`copyright invalidity claim failed. Defendant’s motion for summary judgment on Plaintiff’s
`
`copyright invalidity claim succeeded for the same reason — that Defendant’s product was
`
`presumptively valid because it was original and therefore the copyright was valid. C.f. Fonar
`
`Corp. v. Domenick, 105 F.3d 99, 104 (2d Cir. 1997) (noting the presumption of validity may be
`
`rebutted by evidence that clearly demonstrates that plaintiff’s design lacks originality).
`
`Accordingly, Plaintiff’s argument that the Court should have denied Defendant’s motion
`
`for summary judgment on the copyright invalidity claim is without merit because Plaintiff had to
`
`7
`
`

`

`Case 1:20-cv-01360-SJB Document 85 Filed 08/11/23 Page 8 of 8 PageID #: 1739
`
`show more than just a material dispute regarding functionality in order to rebut the presumption
`
`of validity — it had to actually show unoriginality, which it did not for the reasons stated above.
`
`III. Conclusion
`
`For the foregoing reasons, the Court denies Plaintiff’s motion.
`
`Dated: August 11, 2023
`
`Brooklyn, New York
`
`SO ORDERED:
`
`
`
` /s/ MKB
`MARGO K. BRODIE
`United States District Judge
`
`
`
`8
`
`