Bayoh v. Afropunk Fest 2015 LLC et al
| Mambu Bayoh |
| Afropunk Fest 2015 LLC, Afropunk LLC, Afropunk Global Initiative LLC, Matthew Morgan, Jocelyn Cooper, John Doe and Jane Doe 1-10 |
| 1:2018cv05820 |
| June 27, 2018 |
| US District Court for the Southern District of New York |
| Foley Square Office |
| NewYork |
| Katherine B. Forrest |
| Kevin Nathaniel Fox |
| Copyrights |
| 17 U.S.C. ยง 101 |
| Plaintiff |
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Available Case Documents
The following documents for this case are available for you to view or download:
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Filing
196
MEMORANDUM OPINION AND ORDER re: 186 MOTION for Attorney Fees and Costs. filed by Jocelyn Cooper, Matthew Morgan, Afropunk LLC. The Defendants' motion for attorney's fees and costs is granted in part. The Clerk of Court shall enter a bill of costs in favor of the Defendants in the amount of $13,652.87. (Signed by Judge Denise L. Cote on 2/23/2021) (jca) Transmission to Orders and Judgments Clerk for processing.
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Filing
189
ORDER: Accordingly, it is hereby ORDERED that the plaintiff shall respond to the defendants'motion by January 15, 2021. The defendants' reply is due January 22. (Responses due by 1/15/2021, Replies due by 1/22/2021.) (Signed by Judge Denise L. Cote on 1/5/2020) (jca)
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Filing
185
CLERK'S JUDGMENT re: 184 Memorandum & Opinion. in favor of Afropunk LLC, Jocelyn Cooper, Matthew Morgan against Mambu Bayoh. It is hereby ORDERED, ADJUDGED AND DECREED: That for the reasons stated in the Court's Memorandum Opinion a nd Order dated December 18, 2020, the Defendants' December 2, 2020 motion to vacate the July 1, 20218 preliminary injunction is granted; Judgment is entered for the defendants and the case is closed. (Signed by Clerk of Court Ruby Krajick on 12/21/2020) (Attachments: # 1 Notice of Right to Appeal) (dt)
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Filing
184
OPINION AND ORDER re: 172 MOTION to Vacate July 11, 2018 Order. filed by Jocelyn Cooper, Matthew Morgan, Afropunk LLC. The defendants December 2, 2020 motion to vacate the July 11, 2018 preliminary injunction is granted. The Clerk of Court shall enter judgment for the defendants and close the case. (Signed by Judge Denise L. Cote on 12/18/2020) (jca) Transmission to Orders and Judgments Clerk for processing.
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Filing
183
ORDER: Accordingly, it is hereby ORDERED that the plaintiff's motion to strike the defendants' filing under Fed. R. Civ. P. 37(b) and Fed. R. Civ. P. 12(f) is denied. IT IS FURTHER ORDERED that the plaintiff's motion to impose sanctions under Fed. R. Civ. P. 11 is denied on the merits and for failure to follow Rule 11s requirements. (Signed by Judge Denise L. Cote on 12/15/2020) (jca)
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Filing
181
OPINION AND ORDER......The non-jury trial scheduled for December 17, 2020 is cancelled. The plaintiff having failed to offer evidence of irreparable harm, his request for a permanent injunction is denied. (Signed by Judge Denise L. Cote on 12/11/2020) (gr)
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Filing
166
ORDER The plaintiff having indicated in the November 10, 2020 submission that it seeks a permanent injunction and the defendants having indicated in that same submission that they wish to move to vacate the preliminary injunction issued on July 11, 2018, it is hereby ORDERED that a bifurcated trial will be held on the plaintiffs request for a permanent injunction. If the plaintiff is able during the first phase of the trial to show irreparable harm, a trial will be held on the remaining element s of its request for an injunction. The following schedule shall govern the further conduct of pretrial proceedings in this case: 1. On November 20, 2020 by noon, the plaintiff shall serve, and by December 2 by noon, the defendants shall serve: (a) P roposed Findings of Fact and Conclusions of Law; (b) those portions of depositions that are being offered as substantive evidence, along with a one-page synopsis (with transcript citations) of such testimony for each deposition; and (c) affidavits co nstituting the direct testimony of its witnesses, except for testimony of an adverse party, a person whose attendance must be compelled by subpoena, or a witness for whom a party has requested and the Court has agreed to hear the direct testimony at hearing. Each filing shall relate to the existence of irreparable harm only. 2. At the same time (by November 20 for plaintiff; by December 2 for defendants), the parties shall file their Proposed Findings of Fact and Conclusions of Law and any Memor andum of Law. Each filing shall relate to the existence of irreparable harm only. 3. Three days after submission of the witness affidavits, counsel for each party shall submit a list of all affiants that he or she intends to cross-examine at the hear ing. Affiants for whom such notice is not given are not required to be present at the hearing. 4. By December 8, the plaintiff shall file any Reply Memorandum of Law. The plaintiff may not file a Reply Memorandum of Law unless it filed an initial Mem orandum of Law on November 20. Any reply may only address issues it was unable to anticipate as of November 20. 5. At the time the above-described documents are filed or served, counsel shall also send a complete set of the documents to the Courts Ch ambers email: Cotenysdchambers@nysd.uscourts.gov. The case name, case number, and email contents should be clearly set forth in the emails subject line. IT IS FURTHER ORDERED that on December 2, the defendants shall file any motion to vacate the preliminary injunction. The plaintiff shall file any opposition to the motion to vacate on December 8; any reply shall be served by December 11 at noon. IT IS FURTHER ORDERED that a trial on the plaintiffs request for a permanent injunction, confine d solely to the existence of irreparable harm, will be held on Thursday, December 17 at 9:30 a.m. IT IS FURTHER ORDERED that the parties shall confer regarding whether that trial may be conducted solely through the Courts consideration of the trial e vidence submitted on November 20 and December 2, or whether either party requests an opportunity to cross-examine witnesses. In the event a party seeks to cross-examine witnesses, the parties shall confer regarding whether the trial may be conducted remotely and the witnesses appear for cross-examination via video. The parties shall notify the Court by December 4 of their positions on these issues. (Signed by Judge Denise L. Cote on 11/11/20) (lc)
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Filing
162
ORDER:The plaintiff brought this action seeking damages and injunctive relief. For the following reasons, the defendants motion for summary judgment on the damages claims is granted and the jury trial, scheduled to begin on November 2, 2020, is cance lled. The plaintiffs claim for injunctive relief will beaddressed at a conference to be held on October 30. Plaintiff Mambu Bayoh is a photographer and sued Afropunk LLC (Afropunk) and two of its employees (collectively, Defendants) for copyright inf ringement. Bayoh asserts thatthe Defendants use of 28 of his copyrighted photographs in connection with the promotion of Afropunk music festivals exceeded the limited license he had given Afropunk. Because Bayoh did not timely register his photograph s, he may not obtain an award of statutory damages. On October 26, 2020, this Court granted the Defendants motion to exclude Bayohs two damages experts from testifying at trial. Bayoh v. Afropunk LLC, No. 18CV5820 (DLC), 2020 WL 6269300, at *1(S.D.N. Y. Oct. 26, 2020). Through these experts, Bayoh sought to prove at trial that he is entitled to an award of actual damages and the disgorgement of Afropunks profits. An Order of October 26 required the parties to address, in light of the ruling on th e motion to exclude testimony from the two expertsfor the plaintiff, whether this action should be dismissed in its entirety. In response, Bayoh concedes that without these experts he is unable to establish an entitlement to any damages award. While an award of damages is not an element of a copyright claim, On Davis v. The Gap, Inc., 246 F.3d 152, 158 (2d Cir.2001), Bayoh contends that he has one surviving claim -- a claim for injunctive relief. A claim for injunctive relief sounds in equity. G reat-W. Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204, 211 n.1 (2002). As a result, Bayoh no longer has a right to a jury trial and the November 2 jury trial in cancelled. SeePereira v. Farace, 413 F.3d 330, 337 (2d Cir. 2005) (By preserving the r ight to a jury trial only in suits at common law, the Seventh Amendment of the United States Constitution perpetuates the law/equity dichotomy.). A conference will be held to address Bayohs assertion that he has an outstanding claim for injunctive re lief. While a preliminary injunction was entered in this case on July 11, 2018, Bayohs pretrial order, submitted on October 16, 2020, gave no notice of any intent to seek a permanent injunction. In opposing dismissal of this case, Bayoh suggests that the Defendants should be held in contempt of violation of the preliminary injunction. No contempt proceeding may be initiatedwithout the filing a notice of motion or order to show cause. L. Civ. R. 83.6. Accordingly, it is hereby ORDERED that the De fendants motion for summary judgment on plaintiffs damages claims is granted. IT IS FURTHER ORDERED that the November 2, 2020 jury trial is cancelled. IT IS FURTHER ORDERED that a telephone conference will be held on Friday, October 30, 2020 at 4:00 p.m. The dial-in credentials for the telephone conference are the following:Dial-in: 888-363-4749 Access code: 4324948. IT IS FURTHER ORDERED that the parties shall use a landline if one is available.(Telephone Conference set for 10/30/2020 at 04:00 PM before Judge Denise L. Cote.) (Signed by Judge Denise L. Cote on 10/28/2020) (gr)
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Filing
157
ORDER: On October 26, 2020, this Court issued an Opinion and Order granting the defendants motion to exclude the plaintiffs expert testimony. As a result, the plaintiff will not be able to establish damages at trial. Accordingly, it is hereby ORDERED that by noon on October 27, the parties shall file submissions about whether this action should be dismissed in its entirety. (Signed by Judge Denise L. Cote on 10/26/2020) (gr)
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Filing
147
ORDER granting 145 Letter Motion to Seal. (Signed by Judge Denise L. Cote on 10/23/2020) (gr)
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Filing
144
ORDER: The final pretrial telephone conference in this case was held on October 22, 2020. At the conference, counsel for the plaintiff stated that he intends to call witnesses to testify at trial who were not previously disclosed to defense counsel during discovery. Under Federal Rule of Civil Procedure 37(c)(1), a party that without substantial justification fails to disclose information required by Rule 26(a)... is not, unless such failure is harmless, permitted to use as evidence at a trial ... any witness...not so disclosed. Fed. R. Civ. P. 37(c)(1). In determining whether to exclude a witness under Rule 37(c)(1), a court must consider (1) the partys explanation for the failure to comply with the [disclosure requirement]; (2) the imp ortance of the testimony of the precluded witness[es]; (3) the prejudice suffered by the opposing party as a result of having to prepare to meet the new testimony; and (4) the possibility of a continuance. Patterson v. Balsamico, 440 F.3d 104, 117 ( 2006) (citation omitted). It is hereby ORDERED that if the Court determines that the plaintiffs expert testimony is admissible, the parties shall submit briefs by Thursday, October 29 that address whether the plaintiffs witnesses should be excluded under Federal Rule of Civil Procedure 37(c)(1). IT IS FURTHER ORDERED that a telephone conference will be held on Friday, October 23 at 4:00 p.m. The dial-in credentials for the telephone conference are the following: Dial-in: 888-363-4749 Access code: 4324948 IT IS FURTHER ORDERED that the parties shall use a landline if one is available. (Signed by Judge Denise L. Cote on 10/22/2020) (gr)
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Filing
141
ORDER: On October 20, 2020, the Court held a telephone conference with the parties to discuss the trial date in this matter. The parties having consented to reschedule the trial, it is hereby ORDERED that the trial will begin on Monday, November 2 at 9:30 a.m. (Jury Trial set for 11/2/2020 at 09:30 AM before Judge Denise L. Cote.) (Signed by Judge Denise L. Cote on 10/20/2020) (gr)
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Filing
122
ORDER: ORDERED that the defendants shall promptly file on ECF the material submitted to this Courts Chambers email inbox and make any appropriate request through ECF to file such information under seal or in redacted form. (Signed by Judge Denise L. Cote on 10/15/20) (lc)
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Filing
119
ORDER: An Order of November 2, 2020 notified the parties that this case has been placed on a trial-ready calendar for the week of November 2, 2020. On October 1, the Clerks Office notified this Court of the availability on their calendar for Wednesd ay, November 4. Accordingly, it is hereby ORDERED that the parties are directed to appear on November 4 at 9:30 a.m. for trial. The parties are advised that this is a firm trial date. The parties will be notified of the courtroom number as soon as one is assigned. IT IS FURTHER ORDERED that parties ensure that all trial participants, including witnesses, comply with the Southern District of New Yorks Fourth Amended Standing Order entitled In re Coronavirus/COVID-19 Pandemic (M-10-468), enter ed June 12, 2020, and other SDNY COVID-19-related orders that govern entry into and behavior within SDNY courthouses. These materials may be found at: https://www.nysd.uscourts.gov/covid-19-coronavirus. IT IS FURTHER ORDERED that parties are respons ible for informing themselves of any modifications to SDNY COVID-19-related rules and procedures and adhering to all current rules and procedures for the duration of the trial. IT IS FURTHER ORDERED that a failure to comply may result in the imposition of sanctions or other appropriate relief in the circumstances. ( Jury Trial set for 11/4/2020 at 09:30 AM before Judge Denise L. Cote.) (Signed by Judge Denise L. Cote on 10/2/2020) (gr)
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Filing
118
ORDER: A jury trial having been scheduled in this case, it is hereby ORDERED that parties ensure that all trial participants, including witnesses, comply with the Southern District of New York's Fourth Amended Standing Order entitled In re Coro navirus/COVID-19 Pandemic (M-10-468), entered June 12, 2020, and other SDNY COVID-19-related orders that govern entry into and behavior within SDNY courthouses. These materials may be found at: https://www.nysd.uscourts.gov/covid-19-coronavirus. IT I S FURTHER ORDERED that parties are responsible for informing themselves of any modifications to SDNY COVID-19-related rules and procedures and adhering to all current rules and procedures for the duration of the trial. IT IS FURTHER ORDERED that a failure to comply may result in the imposition of sanctions or other appropriate relief in the circumstances. (Signed by Judge Denise L. Cote on 9/29/2020) (jca)
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Filing
116
ORDER: On September 4, 2020, this Court issued an Order scheduling the final pretrial conference in this matter to occur in person on October 22. The parties having expressed a preference for the proceeding to occur via telephone conference, it is hereby ORDERED that the final pretrial conference will occur on October 22, 2020 at 3:00 p.m. via telephone conference. The parties shall use the following dial-in credentials for the conference: Dial-in: 888-363-4749 Access code: 4324948. IT IS FURTHER ORDERED that the parties shall use a landline if one is available. (Signed by Judge Denise L. Cote on 9/25/2020) (gr)
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Filing
115
ORDER: It is hereby ORDERED that a telephone conference will be held on Friday, September 25 at 11:00 a.m. The dial-in credentials for the telephone conference are the following: Dial-in: 888-363-4749 Access code: 4324948. IT IS FURTHER ORDERED that the parties shall use a landline if one is available. (Telephone Conference set for 9/25/2020 at 11:00 AM before Judge Denise L. Cote.) (Signed by Judge Denise L. Cote on 9/22/2020) (jca)
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Filing
113
ORDER: On September 2, 2020, the parties filed a letter motion for an extension of the schedule. Having reviewed the parties request, it is hereby ORDERED that the parties may extend the discovery schedule on consent, but the Joint Pretrial Order w ill be due October 16, 2020. The trial remains on the November 2020 trial ready calendar. The Southern District of New York is reconfiguring courtrooms and other spaces in its courthouses to allow civil jury trials to proceed as safely as possible during the COVID-19 pandemic. On September 2, 2020, the Clerks Office notified district judges of the dates on which jury selection could commence during October through December 2020 in the reconfigured spaces. Accordingly, the parties are hereby NOTIFIED that this action has been placed on a trial-ready calendar for the week of November 2, 2020. It is hereby ORDERED that the parties shall be prepared to proceed to trial as of that date and on each following week (except Thanksgiving week) t hrough the week of December 14, 2020. The parties are advised that they will receive as much notice as possible about whether their case will proceed to trial in any of those weeks. IT IS FURTHER ORDERED that a final pretrial conference will occur on October 22, 2020 at 3:00pm in Courtroom 18B, 500 Pearl Street. (Signed by Judge Denise L. Cote on 9/4/2020) (gr)
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Filing
110
ORDER: It is hereby ORDERED that the parties shall consult and advise the Court by August 12, 2020 whether, should this case proceed to trial, all parties consent to a bench trial before this Court. IT IS FURTHER ORDERED that the parties shall consult and advise the Court by August 12, 2020 whether all parties consent to have this case proceed to trial before a magistrate judge rather than before this Court. IT IS FURTHER ORDERED that, should the parties consent to a bench trial bef ore this Court, they will consult and advise the Court by August 12, 2020, of three Mondays during the period November 2020 to December 2020 when they are prepared to begin that trial. The Court will attempt to accommodate the parties' choice o f dates and give them notice by September 8, 2020 of the date of the trial. The Court will also schedule a conference with the parties to discuss how much of the bench trial may proceed remotely. SO ORDERED. (Signed by Judge Denise L. Cote on 8/5/2020) (jca)
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Filing
109
SCHEDULING ORDER granting 107 Letter Motion to Seal; granting 108 Letter Motion for Extension of Time to Complete Discovery. It is hereby ORDERED that plaintiff's July 3 letter motion to seal is GRANTED. IT IS FURTHER ORDERED that the follo wing schedule shall govern the further conduct of pretrial proceedings in this case: 1. This case has been referred to mediation, which shall occur by August 20, 2020. 2. Depositions of expert witnesses must occur by September 5, 2020. 3. The Joint Pretrial Order must be filed by October 5, 2020. IT IS FURTHER ORDERED that the case is placed on the November 2020 trial ready calendar. You must be ready to proceed on 24 hours notice. You may contact the Deputy Clerk, Gloria Rojas, to learn where your case stands on the calendar. ( Deposition due by 9/5/2020., Pretrial Order due by 10/5/2020.). (Signed by Judge Denise L. Cote on 7/6/2020) (kgo)
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Filing
104
ORDER: Accordingly, the Court will grant an eight-week extension of all upcoming deadlines. Counsel should consult as to whether pretrial proceedings, including depositions and mediation, may be conducted through video conference or teleconference . It is hereby ORDERED that, pursuant to Rules 30(b)(3) and (b)(4), Fed. R. Civ. P., all depositions in this action may be taken via telephone, videoconference, or other remote means, and may be recorded by any reliable audio or audiovisual means. Th is Order does not dispense with the requirements set forth in Fed. R. Civ. P. 30(b)(5), including the requirement that, unless the parties stipulate otherwise, the deposition be "conducted before an officer appointed or designated under Rule 28, " and that the deponent be placed under oath by that officer. For avoidance of doubt, however, a deposition will be deemed to have been conducted before an officer so long as that officer attends the deposition via the same remote means (e.g., telephone conference call or video conference) used to connect all other remote participants, and so long as all participants (including the officer) can clearly hear and be heard by all other participants. IT IS FURTHER ORDERED that the following s chedule shall govern the further conduct of pretrial proceedings in this case: 1. This case has been referred to mediation, with mediation to occur in May 2020. 2. Depositions of expert witnesses must occur by June 19. 3. The Joint Pretrial Order mus t be filed by July 17. IT IS HEREBY ORDERED that the case is placed on the August 2020 trial ready calendar. You must be ready to proceed on 24 hours notice. You may contact the Deputy Clerk, Gloria Rojas, to learn where your case stands on the calendar (Deposition due by 6/19/2020., Pretrial Order due by 7/17/2020.) (Signed by Judge Denise L. Cote on 3/23/2020) (jca) Transmission to Mediation Clerk for processing.
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Filing
98
OPINION AND ORDER.....Defendants August 30, 2019 motion for summary judgment is denied, except as to defendants Afropunk Fest 2015 LLC and Afropunk Global Initiative LLC. (Signed by Judge Denise L. Cote on 1/15/2020) (gr)
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