WILLIAM T. LAWRENCE, District Judge.
This cause is before the Court on Defendant Michael Harrison's objection to Magistrate Judge Dinsmore's order granting Plaintiff's motion for fees and expenses (and supplemental request for fees) (Dkt. No. 269). The Court, having reviewed the relevant portions of the record,
On February 25, 2013, Plaintiff Malibu Media, LLC, filed its Third Amended Complaint against Harrison (and several other Defendants) alleging claims of direct copyright infringement and contributory copyright infringement. Dkt. No. 59. Thereafter, Harrison moved to compel certain discovery from Malibu Media. Dkt. No. 150. Subsequently, Malibu Media withdrew its contributory copyright infringement claim, leaving only its claim of direct copyright infringement against Harrison. See Dkt. No. 165.
Magistrate Judge Dinsmore ultimately denied Harrison's motion to compel on various grounds. Dkt. No. 179. Thereafter, Harrison objected to a portion of the Magistrate Judge's ruling. Dkt. No. 180. This Court overruled the objection, finding that Magistrate Judge Dinsmore's ruling was neither clearly erroneous nor contrary to law. Dkt. No. 253.
In denying Harrison's motion to compel, the Magistrate Judge also noted that, pursuant to Federal Rule of Civil Procedure 37(a)(5)(B), Malibu Media could submit a petition for the fees and expenses it incurred in responding to Harrison's motion to compel. Dkt. No. 179 at 5. Malibu Media did so on May 15, 2014, and supplemented its fee request on June 2, 2014.
Under Rule 37, the court "must . . . require the movant, the attorney filing the motion, or both to pay the party or deponent who opposed the motion its reasonable expenses incurred in opposing the motion, including attorney's fees," unless the motion was "substantially justified or other circumstances make an award of expenses unjust." Fed. R. Civ. P. 37(a)(5)(B). The Rule "presumptively requires every loser to make good the victor's costs." Rickels v. City of S. Bend, Ind., 33 F.3d 785, 786 (7th Cir. 1994).
Harrison objects to the Magistrate Judge's decision awarding Malibu Media its fees and expenses and requests review by this Court. Harrison's objection is made pursuant to Federal Rule of Civil Procedure 72(a). Accordingly, the Court must set aside the Magistrate Judge's ruling on this nondispositive issue if it "is clearly erroneous or is contrary to law." Fed. R. Civ. P. 72(a).
The Court will discuss Harrison's arguments regarding each individual request in turn.
With regard to Request No. 6, Magistrate Judge Dinsmore concluded, for the most part, that because the contributory infringement claim had been withdrawn, the information sought in that request was not relevant.
Harrison also argued that the information in Request No. 6 was relevant on other grounds. The Magistrate Judge concluded, however, that his additional arguments "lacked substance." This Court also agreed with Malibu Media that "Defendant's infringing transactions with third parties [was] not the same infringing conduct at issue in this lawsuit." Dkt. No. 253 at 3. For these reasons, the Magistrate Judge concluded that Harrison lacked a substantial justification for moving to compel a response to Request No. 6.
Harrison now argues that because an amended complaint does not officially supersede a prior complaint until the amended complaint is filed, the Magistrate Judge's decision was contrary to Seventh Circuit case law. He further argues that it was improper to assume what Harrison might have known regarding the contributory infringement claim because "no party can predict whether the Court will grant or deny any particular motion." Dkt. No. 269 at 6. Indeed, Harrison "aggressively opposed" Malibu Media's motion to amend its complaint (on grounds unrelated to the contributor infringement claim, of course). Therefore, he really did not know when he filed his motion to compel that the claim would not be at issue. The Court is not persuaded by Harrison's arguments.
The record clearly indicates that on October 2, 2013, Malibu Media notified the Court and Harrison that it "decided not to pursue its claim for contributory infringement." Dkt. No. 130 at 2. Although Malibu Media's Fourth Amended Complaint was not filed until March 7, 2014, it was obvious in October that any claim for contributory infringement would not be at issue. Case law regarding when an amended complaint officially supersedes a prior complaint is irrelevant to the specific issue in this case.
In short, the Court agrees with Magistrate Judge Dinsmore's reasoning and conclusions with respect to this request.
Moving on to Request No. 7, Magistrate Judge Dinsmore concluded that Harrison's argument was not yet "ripe" when he filed his motion to compel, because Malibu Media had agreed to produce the responsive documents subject to a protective order.
Harrison also appears to be upset with the documents ultimately produced by Malibu Media in response to this request, such that, in retrospect, he had grounds to pursue his motion to compel. Harrison, however, states very little in support of this argument.
In sum, the Court does not find Magistrate Judge Dinsmore's order with respect to Request No. 7 contrary to law or clearly erroneous.
Next, Magistrate Judge Dinsmore determined that Harrison's motion to compel with respect to Request No. 9 was not substantially justified because Harrison had not demonstrated the relevance of the unavailable information.
Lastly, Harrison argues that Magistrate Judge Dinsmore's reliance on the notes following Rule 37 was improper.
As a final note, the Court finds that Magistrate Judge Dinsmore's reliance on Tecnomatic, S.p.A. v. Remy, Inc., No. 1:11-cv-991-SEB-MJD (S.D. Ind. Dec. 17, 2013), and Lincoln Diagnostics, Inc. v. Panatrex, Inc., No. 07-CV-2077, 2008 WL 4330182 at *3 (C.D. Ill. Sept. 16, 2008), was not improper. Although the facts of these cases are distinguishable from the present case, the legal propositions for which Magistrate Judge Dinsmore cited the cases remains correct and on point.
For the foregoing reasons, Harrison's objection to Magistrate Judge Dinsmore's order granting Malibu Media its fees and expenses in relation to Harrison's motion to compel (and his related objection) (Dkt. No. 269) is
SO ORDERED.
Dkt. No. 151-1 at ¶ 6.
Dkt. No. 151-1 at ¶ 6.
Dkt. No. 269 at 11-12.