Case 1:18-cv-08313-AT Document 110 Filed 09/13/19 Page 1 of 9
`Case 1:18-cv-08313-AT Document 110 Filed 09/13/19 Page 1 of 9
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`USDC SDNY
`DOCUIVIENT
`ELECTRONICALLY FILED
`DOC #:
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`DATE FILED: 9/13/2019
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`18 Civ. 8313 (AT)
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`ORDER
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
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`SAMIVIY MOURABIT,
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`Plaintiff,
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`-against-
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`STEVEN KLEIN, STEVEN KLEIN STUDIO,
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`LLC, STEVEN KLEIN STUDIO, INC.,
`FRANCOIS NARS, SHISEIDO INC ., SI-IISEIDO
`INTERNATIONAL d/b/a SHISEIDO AMERICAS
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`CORPORATION,
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`ANALISA TORRES, United States District Judge:
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`Defendants.
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`Plaintiff, Sammy Mourabit, brings this action against Defendants, Francois Nars,
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`Shiseido America, Inc., Shiseido International (the “Shiseido Defendants”); Steven Klein, Steven
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`Klein Studio, Inc., and Steven Klein Studio, LLC (the “Klein Defendants”) alleging copyright
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`infringement under the Copyright Act of 1976, 17 U.S.C. § 101 et seq., and numerous state law
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`claims. Am. Compl., ECF No. 12. The Shiseido Defendants and the Klein Defendants moved to
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`dismiss the amended complaint under Rule 12(b)(6), ECF Nos. 46, 49, and for sanctions, ECF
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`Nos. 61, 64. On July 2, 2019, the Court granted Defendants’ motions to dismiss and motions for
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`sanctions (the “July Order”). July Order, ECF No. 84. Plaintiff‘s counsel Mark Moody
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`(“Moody”) moves for partial reconsideration of the July Order. ECF No 86. For the reasons
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`stated below, the motion is GRANTED. Upon reconsideration, the portion of the July Order
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`sanctioning Moody is VACATED.
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`BACKGROUND
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`Plaintiff is a makeup artist. Am. Compl.1] 7. In 2013, he did the “makeup artistry” for
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`an editorial to be featured in W Magazine. Id. 1“] 20—21. Defendant Steven Klein was the
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`photographer for the shoot. Id. ¶ 22. Klein and Defendant Francois Nars, a well-known makeup
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`artist, then launched a line of makeup (“the Collection”) and used Plaintiff’s work to promote the
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`Collection. Id. ¶ 1. Specifically, Defendants used the photographs taken during the W Magazine
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`photoshoot to promote the Collection. Id. ¶ 23. These photos depicted Plaintiff’s makeup
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`artistry, but did not give Plaintiff credit for his work. Id. ¶¶ 24, 27.
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`Plaintiff alleges that he obtained a copyright “in the makeup artistry” used on the model
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`during the photoshoot. Id. ¶ 55. Plaintiff received a copyright for a drawing depicting the
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`makeup used during the shoot (the “Drawing”). See id. (“[Plaintiff] has a copyright in the
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`makeup artistry depicted in . . . certificate of registration No. VA 2-105-396.”); ECF No. 63-1
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`(copyrighted drawing); ECF No. 63-3 (copyright registration for VA 2-105-396). The copyright
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`registration lists the date of completion as 2014. Id.
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`Plaintiff initiated this case in state court on June 10, 2018, alleging unjust enrichment,
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`defamation, unfair competition, trade dress, false designation of origin, dilution, copyright
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`infringement, deceptive acts and practices, tort and fraud. ECF No. 1-1. On July 11, 2019,
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`counsel for the Klein Defendants advised Moody that “[t]he nature of your client’s contributions
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`to my client’s photographic visual works are traditionally not protectable.” Pelosi Decl. Ex. B,
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`ECF No. 66-2. Moody was also advised that his copyright claim lacked merit by counsel for the
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`Shiseido Defendants. Catchart Decl. ¶ 14, ECF No. 63. On September 12, 2018, the case was
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`removed to this Court. ECF No. 1. On September 18, 2018, Plaintiff filed an amended
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`complaint alleging copyright infringement, unjust enrichment, and unfair competition and
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`misappropriation. Am. Compl. Prior to November 27, 2018, Defendant Klein’s counsel had
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`additional phone conversations with Moody in which Klein’s counsel stated that Plaintiff had no
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`copyright claim for numerous reasons, including that it was “impossible for [defendant], who
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`conducted the photo shoot in 2013 to produce the photograph that is the subject of this litigation,
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`to have had access to and copied a drawing created by [plaintiff] that was created a year later in
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`2014.” Pelosi Decl. ¶ 3, ECF No. 66. On November 27, 2018, the parties submitted a joint letter
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`in advance of the initial pretrial conference in which Plaintiff continued to assert the validity of
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`the copyright infringement claim and Defendants argued that the claim was not viable. ECF No.
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`33.
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`On December 3, 2018, this Court held an initial pretrial conference at which Moody
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`stated that he would not be amending his complaint because Plaintiff was entitled to the relief
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`sought. ECF No. 34. On December 6, 2018, the Klein Defendants filed a pre-motion letter
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`seeking leave to file a motion to dismiss and setting forth their bases for doing so. ECF No. 37.
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`This letter stated, among other things, “Klein could not have possibly accessed or referenced a
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`[d]rawing created in 2014 to produce the photograph in 2013. This claim is implausible.
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`Plaintiff’s copyright claim fails on this fact alone.” Id. at 2. The letter also stated that the
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`Copyright Act would preempt Plaintiff’s state law claims. Id. at 3–4. On December 13, 2018,
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`Moody filed a letter stating that “there is no copyright claim” because “[m]ake up artistry is not
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`copyrightable.” ECF No. 38 at 2. The letter further stated that “[Plaintiff’s] copyright claim
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`should be dismissed” and Plaintiff’s state law claims should not be preempted because makeup
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`artistry is not copyrightable. Id. at 3. That same day, this Court issued an order stating that “[i]n
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`light of Plaintiff’s admission, should the Klein Defendants file their anticipated motion to
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`dismiss, the Court would likely dismiss the federal copyright claim and deny supplemental
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`jurisdiction over the state law claims.” December 13 Order, ECF No. 39. The order further
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`directed the parties “to file a stipulation of dismissal without prejudice or a letter stating whether
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`they would like to proceed with the motion to dismiss.” Id. On December 18, 2018, Moody
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`emailed counsel for the Klein Defendants stating that he was “prepared to file a Notice of
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`Voluntary Dismissal.” ECF No. 74 at 9. On December 20, 2018, the Klein Defendants filed a
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`letter stating that they wished to proceed with filing a motion to dismiss and did not “consent to
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`filing a stipulation of dismissal” because they intended to seek sanctions and attorneys’ fees
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`against Plaintiff. ECF No. 41. That same day, the Shiseido Defendants filed a letter similarly
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`stating that they wished to proceed with the motion to dismiss. ECF No. 42. Plaintiff did not
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`respond to the Court’s order.
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`I.
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`Legal Standard
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`DISCUSSION
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`“The standard for granting [a motion for reconsideration] is strict, and reconsideration
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`will generally be denied unless the moving party can point to controlling decisions or data that
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`the court overlooked—matters, in other words, that might reasonably be expected to alter the
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`conclusion reached by the court.” Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995).
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`To that end, a party may not use a motion for reconsideration to “advance new facts, issues or
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`arguments not previously presented to the court.’” McGee v. Dunn, 940 F. Supp. 2d 93, 100
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`(S.D.N.Y. 2013). Instead, motions for reconsiderations are narrowly construed in order “to
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`ensure the finality of decisions and to prevent the practice of a losing party examining a decision
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`and then plugging the gaps of a lost motion with additional matters.” Henderson v. Metro. Bank
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`& Tr. Co., 502 F. Supp. 2d 372, 376 (S.D.N.Y. 2007). The burden rests with the party seeking
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`reconsideration to “demonstrate that the Court overlooked controlling decisions or factual
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`matters that were put before it on the underlying motion.” Davis v. The Gap, Inc., 186 F.R.D.
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`322, 324 (S.D.N.Y. 1999).
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`II.
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`Analysis
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`To impose sanctions under 28 U.S.C. § 1927, the Court must find clear evidence that “(1)
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`the offending party’s claims were entirely meritless and (2) the party acted for improper
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`purposes.” Agee v. Paramount Commc’ns, Inc., 114 F.3d 395, 398 (2d Cir. 1997). In the July
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`Order, the Court found that Plaintiff’s claims were entirely meritless because “Plaintiff created
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`the copyrighted work, the [D]rawing, after the alleged infringing photograph was created.” July
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`Order at 15. In particular, the Copyright Application states that the work was created in 2014.
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`ECF No. 63-3, but the Amended Complaint states that the photoshoot took place around
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`December 15, 2013. Am. Compl. ¶ 21.
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`Moody moves for reconsideration on the ground that the Court overlooked his declaration
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`submitted in support of his sanctions’ opposition brief (the “Declaration”)—specifically his
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`representation that the Drawing was created before the alleged infringing photograph. See Pl.
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`Decl. ¶ 27, ECF No. 74 (stating that the Drawing was created in 2013, and the 2014 date listed in
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`Copyright Registration was error of copyright counsel). Moody further requested that the Court
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`review in camera emails between Plaintiff, Moody, and Plaintiff’s copyright counsel. Id.
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`The Court’s prior determination that Moody’s actions were “completely without merit,”
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`rested on the conclusion that the allegedly infringing photograph was created before the
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`Drawing. July 16 Order at 16. In other words, the Court had concluded that the copyright
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`infringement claim was “entirely meritless” because “[i]t is not possible to copy something that
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`has not yet been created.” July Order at 15. In making that determination, however, the Court
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`overlooked the statement Moody made in the Declaration and his offer to provide emails
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`substantiating his claims for in camera review. Having reviewed the emails, see ECF No. 109,
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`the Court no longer concludes that Moody’s actions were “so completely without merit” to
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`justify the imposition of sanctions as they indicate that Plaintiff represented to Moody that the
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`Drawing was created in 2013.
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`Although Moody’s actions may represent “poor legal judgment,” Schlaifer Nance & Co
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`v. Estate of Warhol, 194 F.3d 323, 340 (2d Cir. 1999), the Court is also cognizant that “[a]
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`sanctions award implicates the reputational interests of the attorney . . . his primary asset,” Agee,
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`114 F.3d at 398. and that, therefore, “the bad faith standard is interpreted stringently,” Martin v.
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`Giordano, 185 F. Supp. 3d 339, 354 (E.D.N.Y. 2016). Here, the Court inferred bad faith based
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`on the fact that the copyright claim was “entirely without merit,” which in turn was premised on
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`the Drawing’s creation after the alleged infringement. See July Order at 16–17. Because the
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`Court can no longer conclude that Moody had no reasonable basis for his belief that the
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`Drawing’s creation pre-dated the alleged infringement, the Court can similarly no longer impute
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`bad faith to Moody’s actions.
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`Defendants make several arguments. First, Defendants argue that Moody “waived this
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`matter by choosing not to address it until after judgment was entered against his client and
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`sanctions granted against himself.” Def. Opp. at 3, ECF No. 92. The Court disagrees. Although
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`the Court questions why Moody did not specifically raise this in his opposition brief or at any
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`other point in the litigation, the Court rejects Defendants’ argument that this issue “was never
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`meaningfully raised in the briefing” of the sanctions motion. See Def. Opp. at 3; Associated
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`Press v. U.S. Dep’t of Def., 410 F. Supp. 2d 147, 152 (S.D.N.Y. 2006) (“A motion for
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`reconsideration allows a party to bring to the Court’s attention to an argument the party has
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`previously raised and the Court has overlooked; but it does not allow a party to use the guise of
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`‘reconsideration’ to raise what is effectively a new argument or one never meaningfully
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`developed previously.”). First, Moody’s Declaration was submitted with his sanctions’
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`opposition brief. Pl. Decl. Second, his opposition brief specifically referenced the Declaration
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`and stated that it “details the genesis of the filing of the copyright infringement claim.” ECF No.
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`73 at 11. The Declaration stated that Moody could provide the referenced emails to the Court for
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`in camera review. Pl. Dec. ¶ 27. Accordingly, the Court does not find that Moody has waived
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`this argument.
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`Next, Defendants argue that Moody’s statement in his Declaration is inadmissible
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`hearsay. Def. Opp. at 5–6. The Court need not decide this question as, at this stage, the issue is
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`not whether the Drawing was in fact created in 2013, but rather whether Moody lacked a
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`reasonable good faith basis for alleging that it was, such that it can be said that his “actions are so
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`completely without merit as to require the conclusion that they must have been undertaken from
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`some improper purpose.” Revson v. Cinque & Cinque, P.C., 221 F.3d 71, 79 (2d Cir. 2000)
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`(internal quotation marks, citation, and alteration omitted). As previously discussed, after
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`reviewing the emails submitted for in camera review, the Court can no longer conclude that
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`Moody “had utterly no basis for [his] subjective belief in the case,” Schlaifer, 194 F.3d at 340, as
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`the emails demonstrate that, prior to filing this lawsuit, Moody’s client represented that the
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`Drawing was created in 2013.1
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`Finally, Defendants argue that the Court awarded sanctions based on numerous instances
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`of sanctionable conduct. Def. Opp. at 7. Defendants are incorrect. The basis for the Court’s
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`finding that the claim was entirely meritless was that the Drawing was created after the allegedly
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`infringing photograph, this conclusion also informed the Court’s determination that Moody acted
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`1 The statements made in the emails do not constitute hearsay because the significance of the offered statements in
`the emails “lies solely in the fact that [they were] made,” United States v. Dupree, 706 F.3d 131, 136 (2d Cir. 2013)
`(citing Fed. R. Evid. 801(c) advisory committee’s note), because they speak to whether Moody acted in bad faith in
`filing a claim for copyright infringement.
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`in bad faith.2 Moreover, because 28 U.S.C. § 1927 requires a two-pronged analysis, the Court’s
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`finding that the “claim [was] not entirely without color” precludes the imposition of sanctions.
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`In re Khan, 593 F. App’x 83, 85 (2d Cir. 2015) (internal quotation marks and citation omitted).
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`Additionally, Moody offered to withdraw the copyright claim less than three months after the
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`case was removed to federal court. Accordingly, although his actions until that time are highly
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`questionable, particularly his decision to abandon the copyright claim midstream, the “bad faith
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`bar is difficult to satisfy and should be invoked with restraint.” Spartan Capital Sec., LLC v.
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`Stonbely, No. 18 Civ. 6819, 2018 WL 6070001, at *11 (S.D.N.Y. Nov. 21, 2018), report and
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`recommendation adopted sub nom., Spartan Capital Sec., Inc. v. Stonbely, No. 18 Civ. 6819,
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`2019 WL 95476 (S.D.N.Y. Jan. 3, 2019). Without the finding that Moody had utterly no basis to
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`believe that the Drawing was created before the allegedly infringing photograph, the Court
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`cannot conclude that there is “clear evidence” that Moody acted in bad faith.
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`CONCLUSION
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`For the reasons stated above, Plaintiff’s motion for reconsideration of the July Order is
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`GRANTED and the portion of the July Order imposing sanctions against Moody is VACATED.
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`2 Defendants correctly point out that the Court also found that the works were not “strikingly similar.” July Order at
`16 n.9. However, striking similarity is only applicable when a plaintiff cannot establish the alleged infringer had
`access to the copyrighted work. July 16 Order at 16 n.4 (citing Webb v. Stallone, 910 F. Supp. 2d 681, 687
`(S.D.N.Y. 2012)). The Court’s finding that Plaintiff would not “be able to establish that Defendants had a
`reasonable possibility of viewing the prior work” was based on the fact that the Drawing was created after the
`allegedly infringing work. Id. at 16.
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`Case 1:18-cv-08313-AT Document 110 Filed 09/13/19 Page 9 of 9
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`The Clerk of Court is directed to terminate the motion at ECF No. 86.
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`SO ORDERED.
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`Dated: September 13, 2019
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`New York, New York
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