ORDER AND REASONS

KURT D. ENGELHARDT, District Judge.

Presently are various post-trial motions (Rec. Docs. 476, 479-80, 489,495 and 497) filed by the parties to this matter. Having carefully considered the parties' supporting and opposing submissions, applicable law, and the record of this matter, the Court rules on the motions as stated herein.

I. Plaintiff's Motion for New Trial Based on Prejudicial Rulings (Rec. Doc. 479).

Plaintiff's "Motion for New Trial Based on Prejudicial Rulings by the Court Concerning the Admission or Denial of Admission of Evidence and the Failure to Give Effect of Admissions Deemed Admitted or Admitted by Judgment in State Court" is filed pursuant to Rule 59(a) of the Federal Rules of Civil Procedure. See Rec. Doc. 479. Rule 59(a) allows a Court to grant a new trial following a trial by jury for "any reason for which a new trial has heretofore been granted in an action at law in federal court." See Fed. R. Civ. P. 59(a). Under this standard, "a new trial may be granted, for example, if the district court finds the verdict is against the weight of the evidence, the damages awarded are excessive, the trial was unfair, or prejudicial error was committed in its course.'" Weckesser v. Chicago Bridge and Iron, L.G., 447 Fed. Appx. 526 (5th Cir. 2011) (quoting Smith v. Transworld Drilling Co., 773 F.2d 610, 613 (5th Cir. 1985). Applying these standards to Plaintiff's motion, the Court finds her request for a new trial on the asserted grounds to be unfounded.

In this motion, Plaintiff complains about certain rulings made at trial regarding the admission and/or exclusion of evidence, as well as certain rulings that Plaintiff maintains the Court never made. Specifically, Plaintiff contends:

First, regarding Plaintiff's objection to the procedure ordered by the Court relative to the introduction of exhibits into evidence, the Court notes that is charged with exercising reasonable control over the mode and order of examining witnesses and presenting evidence so as to: (1) make those procedures effective for determining the truth; (2) avoid wasting time; and (3) protect witnesses from harassment or undue embarrassment. See Fed. R. Evid. 611 (a). Although Plaintiff inexplicably has not provided a transcript of the pertinent trial proceedings in connection with her motion, the Court, in imposing the procedure about which Plaintiff complains, explained why it was being imposed. In short, the Court sought to fulfill its obligations under Rule 611(a), and to avoid having the jury consider the hundreds, if not thousands, of pages of documents for which the relevancy and necessity were not obvious that Plaintiff sought to introduce absent any evidentiary explanation of their relevance by means of party stipulation or testimony of a witness with personal knowledge.10

With respect to Plaintiff's second contention, the Court again notes that Plaintiff has not provided a trial transcript in connection with her motion. As such, the Court has no reason to conclude that the basis for any of its trial rulings was insufficiently clear. Nor is a new trial warranted simply because a party believes that an evidentiary ruling is erroneous.

On the showing made, Plaintiff's third contention likewise fails. To the extent that a party or counsel is concerned during the course of a trial that the jury might inappropriately construe a remark by the presiding judge as asserting an opinion regarding a matter to be decided by the jury, it is the duty of counsel to so notify the Court. The undersigned recalls no such assertion being made by counsel during the trial of this matter. Further, the Court instructs the jury, more than once during trial, that the jury is the finder of facts and that, in making those findings, the jury is to disregard anything the Court may have said except for instructions on the law. In any event, without the benefit of citation to the trial transcript, the Court has no basis for determining that any error occurred.

Plaintiff's fourth contention also warrants no relief. The Court again reminds Plaintiff that it is the Court's duty to render rulings regarding the admission of evidence and again notes Plaintiff's failure to include a trial transcript in her submission. Further, as previously stated, a new trial is not warranted simply because a party believes an evidentiary ruling made at trial to be erroneous.

Finally, regarding Plaintiff's fifth contention, the record reflects that the Court denied the motions in support of which Plaintiff had submitted the disputed admissions, and memorialized those rulings in record documents 186 and 189.

For the foregoing reasons, the Court, having carefully considered the parties' submissions, finds Plaintiff's motion for a new trial to be without merit. Accordingly, IT IS ORDERED that the motion (Rec. Doc. 479) is DENIED.

II. 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)

Plaintiff also has filed a motion seeking a new trial pursuant to Rule 59(e) of the Federal Rules of Civil Procedure. Her motion is directed at the adverse jury verdict rendered on her copyright claim. She also seeks reconsideration of her summary judgment motion regarding that claim. See Rec. Doc. 489.

In deciding a Rule 59(e) motion, the Court must balance (1) the need to bring litigation to an end, and (2) the need to render just decisions on the basis of all of the facts. Lines v. Fair Ins. Co., 2010 WL 4338636, *1 (E.D. La. Oct. 21, 2010)(Engelhardt, J.)(citing Lavespere v. Niagara Mach. & Tool Works, Inc., 910 F.2d 167, 174 (5th Cir.1990), abrogated on other grounds by Little v. Liquid Air Corp., 37 F.3d 1069, 1075-76 (5th Cir.1994)). Thus, Rule 59(e) relief may be appropriate (1) where there has been an intervening change in the controlling law; (2) where the movant presents newly discovered evidence that previously was unavailable; (3) to correct a manifest error of law or fact, or (4) to prevent manifest injustice. Schiller v. Physicians Res. Group, Inc., 342 F.3d 563, 567 (5th Cir. 2003); see also Rosenblatt v. United Way of Greater Houston, 607 F.3d 413, 419 (5th Cir. 2010); Marseilles Homeowners Condo. Ass'n, Inc. v. Fidelity Nat'l Ins. Co., 542 F.3d 1053, 1058 (5th Cir. 2008) ("A motion to alter or amend the judgment under Rule 59(e) `must clearly establish either a manifest error of law or fact or must present newly discovered evidence.'"); Templet v. HydroChem, Inc., 367 F.3d 473, 479 (5th Cir. 2004) (a Rule 59(e) motion "serves the narrow purpose of allowing a party to correct manifest errors of law or fact or to present newly discovered evidence"); Rosenzweig v. Azurix Corp., 332 F.3d 854, 864 (5th Cir. 2003) ("[A] motion to alter or amend the judgment under Rule 59(e) must clearly establish either a manifest error of law or fact or must present newly discovered evidence and cannot be used to raise arguments which could, and should, have been made before the judgment issued.") (internal quotations omitted). "Reconsideration of a judgment after its entry[, however,] is an extraordinary remedy that should be used sparingly." Pechon v. Louisiana Dept. of Health and Hosps., 368 Fed. Appx. 606, 611, 2010 WL 774178 * 2, n. 16 (5th Cir. 2010)(citing Templet, 367 F.3d at 479)); Peterson v. Cigna Group Ins., 2002 WL 1268404, at *1 (E.D. La. June 5, 2002)(Duval, J.).

Plaintiff urges three grounds in support of this motion. Applying the foregoing standards, the Court concludes that none of Plaintiff's three asserted grounds warrant the extraordinary remedy of setting aside the Court's judgment and the jury's verdict.

First, Plaintiff complains that, pursuant to Rule 56(a) of the Federal Rules of Civil Procedure, the parties were entitled to, but did not receive, pre-trial rulings that included statements "`on the record' of the [Court's] reasons for granting or denying'" the parties' copyright motions for summary judgment (Rec. Docs. 197 and 201). With respect to this argument, the Court notes that in certain instances, rulings on summary judgment motions warrant a comprehensive, extensive statement of the Court's reasons for denying or granting the motion. In others, however, such rulings, especially rulings denying summary judgment because of material factual issues, rather than granting it, do not. And to suggest otherwise, the Court believes, misstates the law.

In this instance, regarding the copyright claim and defenses, the Court concluded, after much consideration of the parties's written submissions, that neither side had borne the burden imposed by Rule 56 of demonstrating the absence of a genuine issue of material fact and entitlement to judgment as a matter of law. And, given the history of this litigation, particularly including the overall unproductive nature of the parties' motion practice submissions (written and oral),11 and that trial preparations were complete, with the trial about to commence, the Court did not find any additional statement of reasons for the record to be a necessary or prudent use of limited resources. Accordingly, the Court having previously advised the parties off of the record (via telephone conference) of its rulings, just before trial began, simply announced the rulings for the record on the first day of trial. See Court's February 7, 2011 Minute Entry (Rec. Doc. 439). The Court does not find this decision to justify a new trial.

Second, Plaintiff urges the granting of a new trial because she contends that the issue of the "copyrightability" of Food and Culture of the American South was submitted to the jury rather than being properly decided, prior to trial, by the Court. Again, the Court disagrees. The jury would not have been asked render a verdict regarding the copyright claims and defenses if the Court did not find at least certain aspects of Plaintiff's work to be copyrightable subject matter. In any event, a review of the record reveals that the jury here was charged with deciding only the issues that the parties sought to have it decide, and that the jury was carefully instructed regarding the requisite elements of the claim and defenses, taking into consideration (as did the parties) applicable jurisprudence, the Seventh and Ninth Circuits' pattern jury instructions, and the parties' proposed jury instructions. See, e.g., Amazing Spaces, Inc. v. Metro Mini Storage, 608 F.3d 225, 251 (5th Cir. 2010) (to establish copyright infringement, a plaintiff must prove that he owns a valid copyright and that the defendant copied elements of the plaintiff's work that are original); see also Court's Revised Jury Verdict Form (Rec. Doc. 447); Plaintiff's proposed jury verdict forms regarding her copyright claims (Rec. Docs. 310 and 408); Court's Jury Instructions, a copy of which is attached hereto as Exhibit A); Plaintiff's Requested Jury Copyright Jury Charges, including Nos.1, 7-10 (Rec. Doc. 412); Seventh Circuit Model Jury Instructions, including 12.2.1, 12.3.1, 12.4.1- 4.3; Ninth Circuit Model Jury Instructions, including 17.4, 17.5, 17.8-17.9, and 17.12.

Significantly, Plaintiff does not point to record evidence establishing that she preserved an objection at trial to particular language addressing her copyright claim that was included in the revised jury verdict form signed by the jury foreperson, or the Court's jury instructions. Rather, at trial, Plaintiff made no objections to the jury verdict form or the Court's instructions to the jury regarding the applicable substantive law.12 If anything, Plaintiff's proposed first jury verdict form question, asking whether the jury found Plaintiff's syllabus and other materials to constitute "original intellectual work appropriate for copyright protection," is arguably broader than the first question utilized by the Court, asking whether the jury found "a valid copyright exists. . . and, if so, that [Plaintiff] is the owner of that copyright." See Rec. Doc. 447, at p. 12; Rec. Docs. 310 and 408). Indeed, the Plaintiff requested a trial by jury on "all issues." See Rec. Doc. 42.

Lastly, Plaintiff maintains that copyright registration certificates issued to Plaintiff subsequent to the completion of the February 2011 jury trial, with retroactive effective dates of May 21, 2009 and May 10, 2010, render the jury verdict on her copyright claim "wrong as a matter of law" and require a new trial on the copyright claim and defenses. In support of this contention, Plaintiff cites to authorities establishing that the effective date of a copyright registration is the date that the copyright application, deposit, and fee were received in the office of the Register of Copyrights and that, in judicial proceedings, a certificate of a registration made before or within five years after first publication of the work constitutes "prima facie evidence of the validity of the copyright and the facts stated in the certificate." See 17 U.S.C. § 410(a-d). She additionally cites Cosmetic Ideas, Inc. v. IAC/Interactive Corp., 606 F.3d 612, 616 (9th Cir. 2010) for the proposition that this "rule even applies when notice of registration is provided on appeal."

While the Court does not disagree with Plaintiff's supporting citations of authority, the same is not true with respect to Plaintiff's contention that those authorities require that the Court set aside the jury's verdict regarding Plaintiff's copyright claim and order a new trial of the claim and the defenses thereto. Here, less than a month after Plaintiff submitted an application for copyright registration on or about April 28, 2009, presumably not knowing if and when a registration certificate ultimately would be issued, she elected to file the instant lawsuit on May 18, 2009. Thereafter, she sought to have her copyright claims decided in court by means of motion practice and trial. If Plaintiff had received her certificates of copyright registration prior to the jury rendering a verdict in this matter, on February 16, 2011,13 Plaintiff would have had the benefit of a rebuttable presumption regarding her ownership of a valid copyright. Unfortunately for Plaintiff, however, she did not.14

Significantly, despite being aware of the legal advantage that having a copyright registration certification would have given her in this lawsuit, Plaintiff points to no measures taken by her to ensure that the Register of Copyrights would have completed the registration review process prior to her copyright claim filed in this Court being determined on the merits. For instance, Plaintiff apparently did not request expedited consideration by the Register of Copyrights of her application. Nor, once in court, did she request to have the proceeding stayed as to her copyright claim until such time as the Register of Copyright had reviewed and determined her application for copyright registration.

Under these circumstances, Plaintiff cannot be allowed to have the seven-day jury trial conducted in this matter, at her request, constitute little more than a "trial run" of her copyright infringement action. The Court does not read 17 U.S.C. § 410, cited by Plaintiff, to command such a result, and Plaintiff has not provided any authority interpreting the statute to the contrary. The same is true with respect to the Ninth's Circuit decision in Cosmetic Ideas, Inc. There, the plaintiff was going to have the benefit of a registration certificate "post-appeal" because, significantly, that plaintiff's lawsuit had been erroneously dismissed by the district court for lack of subject matter jurisdiction. See Cosmetic Ideas, Inc., 606 F.3d at 616. Indeed, by the time the Ninth Circuit rendered its decision, the plaintiff had received a registration certificate, and filed a second lawsuit, which was then stayed pending the appeal of the dismissal of the first lawsuit. Id. at 615, n.1. Thus, the Court finds Cosmetic Ideas, Inc., readily distinguishable from the instant matter.

Given the foregoing, the Court finds that Plaintiff has demonstrated nothing more than that she is disappointed with the jury's verdict regarding her copyright claims and would like a "second bite at the apple." She certainly has not shown entitlement to the extraordinary relief of a new trial. Accordingly, IT IS ORDERED that Plaintiff's request for a new trial of her copyright claim and reconsideration of the Court's denial of her summary judgment motion as to that claim (Rec. Doc. 489) is DENIED.

III. 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)

Plaintiff also has filed a motion (Rec. Doc. 480) seeking reconsideration of the Court's summary judgment ruling dismissing certain of Plaintiff's claims under the Equal Pay Act, 29 U.S.C. §206(d), Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e, et seq., and 42 U.S.C. §1983 (Rec. Doc. 464). Plaintiff's motion for reconsideration is likewise considered under Rule 59(e). Peterson, 2002 WL 1268404, at *1 (E.D. La. June 5, 2002)(citing St. Paul Mercury Ins. Co. v. Fair Grounds Corp., et al., 123 F.3d 336, 339 (5th Cir. 1997) (motion to alter or amend under Rule 59(e) is proper motion to contest summary judgment)); Patin v. Allied Signal Inc., 77 F.3d 782, 785 n. 1 (5th Cir.1990)(motion to reconsider entry of summary judgment properly styled a Rule 59(e) motion); Lavespere, 910 F.2d at 175 (motion that challenges prior summary judgment filed within 10 days of judgment is brought under Rule 59(e)).

A request for reconsideration of a summary judgment ruling may not be used to re-hash evidence, legal theories, or arguments that either were or could have been offered or raised before the entry of judgment. Lines v. Fair Ins. Co., 2010 WL 4338636, *1 (E.D. La. 10/21/2010)(Engelhardt, J.) (citing Simon v. United States, 891 F.2d 1154, 1159 (5th Cir.1990)); Peterson, 2002 WL 1268404, at *1 (Rule 59(e) should not be used to re-litigate prior matters that have been resolved to the movant's dissatisfaction). Because this is solely what Plaintiff's motion attempts to accomplish, IT IS ORDERED that the motion is DENIED.

IV. Defendants' Motion for Payment of Attorneys Fees (Rec. Doc. 476)

With this motion, Defendants seek an award of attorney's fees, as the "prevailing party," pursuant to 42 U.S.C. §1988. Such an award, however, is not automatically provided to every prevailing defendant. Rather, a successful defendant must show that the plaintiff's claim was "frivolous, unreasonable, or groundless." Myers v. City of West Monroe, 211 F.3d 289, 292 (5th Cir.2000) (quoting Walker v. City of Bogalusa, 168 F.3d 237, 239 (5th Cir.1999)); Fontenot v. Toups, 2011 WL 677345, *5 (E.D. La. Feb. 16, 2011). As set forth in Offord v. Parker, No. 11-20086, 2012 WL 13929, *1 (5th Cir. 2012)(summary calendar), district courts are to consider certain factors in making this decision: "(1) whether the plaintiff established a prima facie case; (2) whether the defendant offered to settle, and (3) whether the court held a full trial." Further, district courts:

Id.

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.

V. 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, Plaintiff seeks only to provide information and argument that either have been, or should have been, submitted numerous times.

EXHIBIT "A"

COURT'S INSTRUCTIONS FOR JURY

MEMBERS OF THE JURY:

YOU HAVE HEARD THE EVIDENCE IN THIS CASE. I WILL NOW INSTRUCT YOU ON THE LAW THAT YOU MUST APPLY. IN ANY JURY TRIAL, THERE ARE, IN EFFECT, TWO JUDGES. I AM ONE OF THE JUDGES; THE OTHER IS YOU THE JURY. IT IS MY DUTY TO PRESIDE OVER THE TRIAL AND TO DETERMINE WHAT TESTIMONY AND OTHER EVIDENCE IS ADMISSIBLE UNDER THE LAW FOR YOUR CONSIDERATION. IT IS ALSO MY DUTY AT THE END OF THE TRIAL TO INSTRUCT YOU ON THE LAW APPLICABLE TO THE CASE. IT IS YOUR DUTY TO FOLLOW THE LAW AS I SHALL STATE IT TO YOU. YOU MUST APPLY THAT LAW TO THE FACTS AS YOU FIND THEM FROM THE EVIDENCE IN THE CASE. YOU ARE NOT TO SINGLE OUT ONE INSTRUCTION ALONE AS STATING THE LAW, BUT MUST CONSIDER THE INSTRUCTIONS AS A WHOLE.

DUTY OF IMPARTIALITY

DO NOT LET BIAS, PREJUDICE OR SYMPATHY PLAY ANY PART IN YOUR DELIBERATIONS. THAT WAS THE PROMISE YOU MADE AND THE OATH YOU TOOK BEFORE BEING ACCEPTED BY THE PARTIES AS JURORS IN THIS CASE, AND THEY HAVE THE RIGHT TO EXPECT NOTHING LESS.

THIS CASE SHOULD BE CONSIDERED AND DECIDED BY YOU AS AN ACTION BETWEEN PERSONS OF EQUAL STANDING IN THE COMMUNITY, OF EQUAL WORTH, AND HOLDING THE SAME OR SIMILAR STATIONS IN LIFE. A CORPORATION OR POLITICAL ENTITY HAS THE SAME RIGHT TO A FAIR TRIAL AS DOES A PRIVATE INDIVIDUAL. ALL PERSONS, CORPORATIONS, POLITICAL SUBDIVISIONS, OR OTHER ENTITIES STAND EQUAL BEFORE THE LAW AND MUST BE TREATED AS EQUALS IN THE COURT OF JUSTICE.

CONSIDERATION OF THE EVIDENCE

AS I STATED EARLIER, IT IS YOUR DUTY TO DETERMINE THE FACTS, AND IN SO DOING, YOU MUST CONSIDER ONLY THE EVIDENCE I HAVE ADMITTED IN THE CASE. THE TERM "EVIDENCE" INCLUDES THE EXHIBITS ADMITTED IN THE RECORD AND THE SWORN TESTIMONY OF THE WITNESSES.

DURING THE COURSE OF THIS TRIAL I MAY HAVE INSTRUCTED YOU THAT I ADMITTED CERTAIN TESTIMONY AND/OR EXHIBITS FOR A LIMITED PURPOSE AND I MAY HAVE INSTRUCTED YOU THAT YOU MAY CONSIDER SOME TESTIMONY AND/OR DOCUMENTS AS EVIDENCE AGAINST ONE PARTY BUT NOT AGAINST ANOTHER. IF I SO INSTRUCTED, YOU MAY CONSIDER SUCH EVIDENCE ONLY FOR THE SPECIFIC LIMITED PURPOSES FOR WHICH IT WAS ADMITTED.

REMEMBER THAT ANY STATEMENTS, OBJECTIONS OR ARGUMENTS MADE BY THE LAWYERS ARE NOT EVIDENCE. NOR ARE THEY INSTRUCTIONS ON THE LAW. THE FUNCTION OF THE LAWYERS IS TO POINT OUT THOSE THINGS THAT ARE MOST SIGNIFICANT OR MOST HELPFUL TO THEIR SIDE OF THE CASE, AND IN SO DOING TO CALL YOUR ATTENTION TO CERTAIN FACTS OR INFERENCES. THUS, THE LAWYERS' STATEMENTS AND ARGUMENTS ARE INTENDED ONLY TO ASSIST YOU IN UNDERSTANDING THE EVIDENCE AND THE PARTIES' CONTENTIONS. IN THE FINAL ANALYSIS, HOWEVER, IT IS YOUR OWN RECOLLECTION AND INTERPRETATION OF THE EVIDENCE THAT CONTROLS. WHAT THE LAWYERS SAY IS NOT BINDING ON YOU.

DURING THE COURSE OF TRIAL, I HAVE OCCASIONALLY MADE COMMENTS TO THE LAWYERS, OR ASKED A QUESTION OF A WITNESS, OR ADMONISHED A WITNESS CONCERNING THE MANNER IN WHICH SHE SHOULD RESPOND TO THE QUESTIONS OF COUNSEL. DO NOT ASSUME FROM ANYTHING I MAY HAVE SAID THAT I HAVE ANY OPINION AS TO THE FACTS. EXCEPT FOR MY INSTRUCTIONS TO YOU ON THE LAW, YOU SHOULD DISREGARD ANYTHING I MAY HAVE SAID DURING THE TRIAL IN ARRIVING AT YOUR OWN FINDINGS AS TO THE FACTS. AFTER ALL, YOU ALONE ARE THE JUDGES OF THE FACTS.

BURDEN OF PROOF

IN A CIVIL ACTION, THE PLAINTIFF, WHO HERE IS ANNE PARR, HAS THE BURDEN OF PROVING EVERY ESSENTIAL ELEMENT OF HER CLAIMS BY A "PREPONDERANCE OF THE EVIDENCE." IN OTHER WORDS, SHE MUST PROVE THAT EVERY ESSENTIAL ELEMENT IS MORE LIKELY TRUE THAN NOT TRUE.

IN DETERMINING WHETHER A FACT HAS BEEN PROVED BY A PREPONDERANCE OF THE EVIDENCE, YOU MAY CONSIDER THE TESTIMONY OF ALL THE WITNESSES, REGARDLESS OF WHO MAY HAVE CALLED THEM, AND ALL THE EXHIBITS RECEIVED IN EVIDENCE, REGARDLESS OF WHO MAY HAVE PRODUCED THEM. IF THE PROOF SHOULD FAIL TO ESTABLISH ANY ESSENTIAL ELEMENT OF THE PLAINTIFF'S CLAIM BY A PREPONDERANCE OF THE EVIDENCE, YOU SHOULD FIND FOR THE DEFENDANT OR DEFENDANTS AS TO THAT CLAIM.

AS YOU HAVE BEEN TOLD, THE DEFENDANTS HERE ARE STEPHEN T. HULBERT, PRESIDENT OF NICHOLLS STATE UNIVERSITY, CARROLL FALCON, RETIRED PROVOST AND ACADEMIC VICE-PRESIDENT OF NICHOLLS STATE UNIVERSITY, ALTON F. DOODY, FORMER DEAN OF THE JOHN FOLSE CULINARY INSTITUTE AT NICHOLLS STATE UNIVERSITY, AND RANDOLPH CHERAMIE, FORMER ACTING DEAN, ASSOCIATE DEAN, AND NOW EXECUTIVE DIRECTOR OF THE JOHN FOLSE CULINARY INSTITUTE, AS WELL AS THE BOARD OF SUPERVISORS FOR THE UNIVERSITY OF LOUISIANA SYSTEM, AS THE ENTITY RESPONSIBLE FOR THE CONTROL AND MANAGEMENT OF NICHOLLS STATE UNIVERSITY. IF ONE OR MORE OF THE DEFENDANTS BEAR THE BURDEN OF PROVING A PARTICULAR DEFENSE IN THIS CASE, BY A PREPONDERANCE OF THE EVIDENCE, AND THE DEFENDANT'S OR DEFENDANTS' PROOF FAILS TO ESTABLISH ANY ESSENTIAL ELEMENT OF THAT DEFENSE, YOU SHOULD FIND FOR THE PLAINTIFF AS TO THAT DEFENSE.

WEIGHT OF THE EVIDENCE

WHILE YOU SHOULD CONSIDER ONLY THE EVIDENCE IN THIS CASE, YOU ARE PERMITTED TO DRAW SUCH REASONABLE INFERENCES FROM THE TESTIMONY AND EXHIBITS AS YOU FEEL ARE JUSTIFIED IN THE LIGHT OF COMMON EXPERIENCE. IN OTHER WORDS, YOU MAY MAKE DEDUCTIONS AND REACH CONCLUSIONS BASED ON REASON AND COMMON SENSE.

THE TESTIMONY OF A SINGLE WITNESS MAY BE SUFFICIENT TO PROVE ANY FACT, EVEN IF A GREATER NUMBER OF WITNESSES MAY HAVE TESTIFIED TO THE CONTRARY, IF AFTER CONSIDERING ALL THE OTHER EVIDENCE YOU BELIEVE THAT SINGLE WITNESS.

THERE ARE TWO TYPES OF EVIDENCE YOU MAY CONSIDER. ONE IS DIRECT EVIDENCE — SUCH AS TESTIMONY OF AN EYEWITNESS. THE OTHER IS INDIRECT OR CIRCUMSTANTIAL EVIDENCE — THE PROOF OF CIRCUMSTANCES THAT TEND TO PROVE OR DISPROVE THE EXISTENCE OR NONEXISTENCE OF CERTAIN OTHER FACTS. THE LAW MAKES NO DISTINCTION BETWEEN DIRECT AND CIRCUMSTANTIAL EVIDENCE, BUT SIMPLY REQUIRES THAT YOU FIND THE FACTS FROM A PREPONDERANCE OF ALL THE EVIDENCE, BOTH DIRECT AND CIRCUMSTANTIAL.

CREDIBILITY OF WITNESSES

IN DETERMINING THE WEIGHT TO GIVE TO THE TESTIMONY OF A WITNESS, YOU SHOULD ASK YOURSELF WHETHER THERE WAS EVIDENCE TENDING TO PROVE THAT THE WITNESS TESTIFIED FALSELY ABOUT SOME IMPORTANT FACT, OR, WHETHER THERE WAS EVIDENCE THAT AT SOME OTHER TIME THE WITNESS SAID OR DID SOMETHING, OR FAILED TO SAY OR DO SOMETHING, THAT WAS DIFFERENT FROM THE TESTIMONY HE OR SHE GAVE AT THE TRIAL.

YOU SHOULD REMEMBER THAT A SIMPLE MISTAKE BY A WITNESS DOES NOT NECESSARILY MEAN THAT THE WITNESS WAS NOT TELLING THE TRUTH. PEOPLE MAY TEND TO FORGET SOME THINGS OR REMEMBER OTHER THINGS INACCURATELY. THUS, IF A WITNESS HAS MADE A MISSTATEMENT, YOU NEED TO CONSIDER WHETHER THAT MISSTATEMENT WAS SIMPLY AN INNOCENT LAPSE OF MEMORY OR AN INTENTIONAL FALSEHOOD, AND THAT MAY DEPEND ON WHETHER IT HAS TO DO WITH AN IMPORTANT FACT OR WITH ONLY AN UNIMPORTANT DETAIL.

EXPERT TESTIMONY

WHEN KNOWLEDGE OF TECHNICAL SUBJECT MATTER MAY BE HELPFUL TO THE JURY, A PERSON WHO HAS SPECIAL TRAINING OR EXPERIENCE IN THAT TECHNICAL FIELD — HE OR SHE IS CALLED AN EXPERT WITNESS — IS PERMITTED TO STATE HIS OR HER OPINION ON THOSE TECHNICAL MATTERS. HOWEVER, YOU ARE NOT REQUIRED TO ACCEPT THAT OPINION. AS WITH ANY OTHER WITNESS, IT IS UP TO YOU TO DECIDE WHETHER TO RELY UPON IT.

IN DECIDING WHETHER TO ACCEPT OR RELY UPON THE OPINION OF AN EXPERT WITNESS, YOU MAY CONSIDER ANY BIAS OF THE WITNESS, INCLUDING ANY BIAS YOU MAY INFER FROM EVIDENCE THAT THE EXPERT WITNESS HAS BEEN OR WILL BE PAID FOR REVIEWING THE CASE AND TESTIFYING, OR FROM EVIDENCE THAT HE OR SHE TESTIFIES REGULARLY AS AN EXPERT WITNESS AND HIS OR HER INCOME FROM SUCH TESTIMONY REPRESENTS A SIGNIFICANT PORTION OF HIS OR HER INCOME.

DEPOSITION TESTIMONY

CERTAIN TESTIMONY HAS BEEN PRESENTED TO YOU DURING THE COURSE OF THE TRIAL THROUGH A DEPOSITION. A DEPOSITION IS THE SWORN, RECORDED ANSWERS TO QUESTIONS ASKED A WITNESS IN ADVANCE OF THE TRIAL. UNDER SOME CIRCUMSTANCES, IF A WITNESS CANNOT BE PRESENT TO TESTIFY FROM THE WITNESS STAND, THAT WITNESS' TESTIMONY MAY BE PRESENTED, UNDER OATH, IN THE FORM OF A DEPOSITION. THUS, SOME TIME BEFORE THIS TRIAL, ATTORNEYS REPRESENTING THE PARTIES IN THIS CASE QUESTIONED THIS WITNESS UNDER OATH. A COURT REPORTER WAS PRESENT AND RECORDED THE TESTIMONY. THE QUESTIONS AND ANSWERS WERE READ OR SHOWN TO YOU DURING THE COURSE OF THE TRIAL. THIS DEPOSITION TESTIMONY IS ENTITLED TO THE SAME CONSIDERATION, IS TO BE JUDGED BY YOU AS TO CREDIBILITY, AND IS TO BE WEIGHED AND OTHERWISE CONSIDERED BY YOU, IN THE SAME WAY, INSOFAR AS THAT IS POSSIBLE, AS IF THE WITNESS HAD BEEN PRESENT IN COURT AND HAD TESTIFIED FROM THE WITNESS STAND.

OBJECTIONS TO THE EVIDENCE

DURING THE COURSE OF TRIAL, YOU WILL HAVE HEARD OBJECTIONS TO EVIDENCE. SOMETIMES THESE HAVE BEEN ARGUED OUT OF THE HEARING OF THE JURY.

IT IS THE DUTY OF THE ATTORNEY ON EACH SIDE OF A CASE TO OBJECT WHEN THE OTHER SIDE OFFERS TESTIMONY OR OTHER EVIDENCE THAT THE ATTORNEY BELIEVES IS NOT PROPERLY ADMISSIBLE. YOU SHOULD NOT DRAW ANY INFERENCE AGAINST OR SHOW ANY PREJUDICE AGAINST A LAWYER OR HIS OR HER CLIENT BECAUSE OF THE MAKING OF AN OBJECTION.

UPON ALLOWING TESTIMONY OR OTHER EVIDENCE TO BE INTRODUCED OVER THE OBJECTIONS OF AN ATTORNEY, THE COURT DOES NOT, UNLESS EXPRESSLY STATED, INDICATE ANY OPINION AS TO THE WEIGHT OR EFFECT OF SUCH EVIDENCE. AS STATED BEFORE, YOU THE JURY ARE THE SOLE JUDGES OF THE CREDIBILITY OF ALL WITNESSES AND THE WEIGHT AND EFFECT OF ALL EVIDENCE.

WHEN THE COURT HAS SUSTAINED AN OBJECTION TO A QUESTION ADDRESSED TO A WITNESS, THE JURY MUST DISREGARD THE QUESTION ENTIRELY, AND MAY DRAW NO INFERENCE FROM THE WORDING OF IT, OR SPECULATE AS TO WHAT THE WITNESS WOULD HAVE SAID IF PERMITTED TO ANSWER.

AT TIMES DURING THE TRIAL, IF I DIRECTED THAT CERTAIN TESTIMONY OR OTHER EVIDENCE BE STRICKEN FROM THE RECORD, AND INSTRUCTED YOU TO DISREGARD THE EVIDENCE, YOU ARE NOT TO CONSIDER TAT TESTIMONY OR OTHER EVIDENCE IN REACHING YOUR DECISION. YOUR VERDICT MUST BE BASED SOLELY ON LEGALLY ADMISSIBLE EVIDENCE AND TESTIMONY.

DEMONSTRATIVE EVIDENCE

EXHIBITS 2056 AND 2122 ARE DEMONSTRATIVE EVIDENCE. IN OTHER WORDS, THOSE EXHIBITS ARE A PARTY'S DEPICTION OF SOMETHING INVOLVED IN THIS TRIAL. IF YOUR RECOLLECTION OF THE EVIDENCE DIFFERS FROM ANY OF THE DEMONSTRATIVE EXHIBITS, HOWEVER, RELY ON YOUR RECOLLECTION.

USE OF NOTES

ANY NOTES THAT YOU HAVE TAKEN DURING THIS TRIAL ARE ONLY AIDS TO MEMORY. IF YOUR MEMORY SHOULD DIFFER FROM YOUR NOTES, THEN YOU SHOULD RELY ON YOUR MEMORY AND NOT ON THE NOTES. THE NOTES ARE NOT EVIDENCE. A JUROR WHO HAS NOT TAKEN NOTES SHOULD RELY ON HIS OR HER INDEPENDENT RECOLLECTION OF THE EVIDENCE AND SHOULD NOT BE UNDULY INFLUENCED BY THE NOTES OF OTHER JURORS. NOTES ARE NOT ENTITLED TO ANY GREATER WEIGHT THAN THE RECOLLECTION OR IMPRESSION OF EACH JUROR ABOUT THE TESTIMONY.

STIPULATIONS

AS YOU ALREADY HAVE BEEN TOLD, THE PLAINTIFF HERE IS ANNE PARR. THE DEFENDANTS ARE STEPHEN T. HULBERT, CARROLL FALCON, ALTON F. DOODY, AND RANDOLPH CHERAMIE, AND THE BOARD OF SUPERVISORS FOR THE UNIVERSITY OF LOUISIANA SYSTEM. THE PLAINTIFF AND THE DEFENDANTS HAVE STIPULATED TO THE FOLLOWING ITEMS:

1. PLAINTIFF PARR WAS EMPLOYED AS A TENURE-TRACK ASSISTANT PROFESSOR AT NICHOLLS STATE UNIVERSITY UNTIL MAY 2009.

2. PARR SERVED IN NINE AND TEN MONTH APPOINTMENTS AS AN ADJUNCT FACULTY MEMBER, ASSISTANT PROFESSOR, ASSISTANT DEAN AND ACTING DEAN DURING HER EMPLOYMENT AT NICHOLLS.

3. THE UL SYSTEM IS AN AGENCY OF THE STATE OF LOUISIANA AND IS THE HIGHER EDUCATION SYSTEM. NICHOLLS STATE UNIVERSITY IS A PUBLIC UNIVERSITY IN THE SYSTEM. THE UL SYSTEM IS GOVERNED BY THE CONSTITUTIONALLY ESTABLISHED MANAGEMENT BOARD, THE BOARD OF SUPERVISORS. NICHOLLS IS A PUBLIC UNIVERSITY. THE BOARD IS A STATE AGENCY.

4. DR. STEPHEN HULBERT IS THE PRESIDENT OF NICHOLLS AND AN OFFICIAL OF THE STATE.

5. DR. CARROLL FALCON SERVED AS PROVOST, AS AN OFFICIAL OF THE STATE, UNTIL RETIREMENT IN 2010, AT NICHOLLS.

6. DR. ALTON DOODY CAME TO NICHOLLS IN FALL OF 2007, AND SERVED AS INTERIM DEAN, DEAN AND THEN EXECUTIVE DIRECTOR OF JFCI, AS AN OFFICIAL OF THE STATE, UNTIL HE RESIGNED IN 2010.

7. RANDOLPH CHERAMIE SERVES AND HAS SERVED AS INSTRUCTOR, ACTING DEAN, ASSOCIATE DEAN AND EXECUTIVE DIRECTOR OF JFCI, AS AN OFFICIAL OF THE STATE, AT NICHOLLS.

8. DON KASTEN, GEORGE KASLOW, JOHN KOZAR, WILLIAM THIBODEAUX, AND MARCELLE BIENVENU ARE ALL FACULTY MEMBERS AT JFCI.

9. ON APRIL 28, 2009, ANNE M. PARR MAILED A REGISTRATION AND A FIXED VERSION OF FOOD AND CULTURE OF THE AMERICAN SOUTH TO THE UNITED STATES COPYRIGHT OFFICE. PLAINTIFF SUBSEQUENTLY ELECTRONICALLY FILED THE APPLICATION REGISTRATION AND THE FIXED VERSION OF FOOD AND CULTURE OF THE AMERICAN SOUTH AND RECEIVED WRITTEN ACKNOWLEDGMENT OF ITS FILING.

10. PARR DID NOT RECEIVE A STIPEND FOR DEVELOPING THIS COURSE.

11. DURING THE PERIOD OF TIME, SEPTEMBER OF 2003 THROUGH JANUARY OF 2006, PARR WAS AN ASSISTANT PROFESSOR AT NICHOLLS STATE UNIVERSITY WITH A NINE MONTH CONTRACT.

12. IN THE FALL OF 2005, ASSISTANT PROF. PARR AND ACTING DEAN KASLOW PRESENTED TO THE NICHOLLS COURSES AND CURRICULA COMMITTEE A COURSE PROPOSAL IN THE FORM OF A SYLLABUS, AND ASSISTANT PROFESSOR PARR WAS APPROVED TO TEACH THE SUBMITTED COURSE, FOOD AND CULTURE OF THE AMERICAN SOUTH, AS AN ELECTIVE OPEN TO JUNIOR AND SENIOR STUDENTS FROM ALL MAJORS OF STUDY. NICHOLLS PROVIDED THE COURSE NUMBER CULA 370 FOR STUDENT REGISTRATION PURPOSES, AND THE COURSE WAS TAUGHT BY ASSISTANT PROFESSOR PARR DURING SOME SEMESTERS FROM 2006 THROUGH THE SPRING OF 2009.

13. FOOD AND CULTURE OF THE AMERICAN SOUTH WAS TAUGHT AS A DISTANCE LEARNING COURSE BY MEANS OF THE INTERNET THROUGH THE BLACKBOARD® DISTANCE LEARNING SYSTEM.

14. NICHOLLS HAS A POLICY REGARDING ACADEMIC DISTANCE LEARNING COURSES, WHICH STATES, INTER ALIA:

15. ON OR ABOUT APRIL 1, 2009, PLAINTIFF RECEIVED A SCHEDULE OF CLASSES FOR THE SUMMER TERM BEGINNING IN JUNE OF 2009 AT NICHOLLS LISTING FOOD AND CULTURE OF THE AMERICAN SOUTH. PLAINTIFF WAS NOT ASKED TO GIVE PERMISSION OR TO CONSENT AND DID NOT GIVE PERMISSION OR CONSENT. THE COURSE WAS TAUGHT AFTER PARR'S FINAL CONTRACT HAD EXPIRED.

16. MS. BIENVENU WAS ASSIGNED CULA 370 TO TEACH THE SUMMER TERM OF 2009 AND DID TEACH CULA 370 TO SOME 30 STUDENTS IN JUNE AND JULY OF 2009 AS AN ONLINE COURSE VIA THE INTERNET THROUGH THE BLACKBOARD® DISTANCE LEARNING SYSTEM.

17. MS. BIENVENU THEREAFTER TAUGHT CULA 401, ENTITLED CULINARY HISTORY OF THE SOUTH, IN THE SUMMER SESSION OF 2010.

18. DEFENDANTS HULBERT, FALCON, AND CHERAMIE WERE SERVED WITH THE ORIGINAL COMPLAINT ON MAY 27, 2009. ALL DEFENDANTS ANSWERED ON JUNE 9, 2009.

19. MARCELLE BIENVENU, LECTURER AT JOHN FOLSE CULINARY INSTITUTE, WAS ASSIGNED TO TEACH FOOD AND CULTURE OF THE AMERICAN SOUTH FOR THE NICHOLLS 2009 SUMMER SESSION BY THEN ASSOCIATE DEAN CHERAMIE.

20. THE NICHOLLS POLICY & PROCEDURE MANUALS STATES:

21. THE FORMER ORGANIZATION OF JFCI WHILE PARR WAS EMPLOYED AT NICHOLLS APPEARED IN THE NICHOLLS POLICY & PROCEDURE MANUALS AND STATES:

22. FS-III.II.B-1A, DS-00013, ET SEQ. OF THE UL SYSTEM RULES AND REGULATIONS, C-III FACULTY STATES AS FOLLOW:

23. DOODY OWNS AND OPERATES, WHEN OPEN, THE NEW ORLEANS CULINARY INSTITUTE, LLC.

24. DOODY OWNED THE NEW ORLEANS CULINARY INSTITUTE, LLC WHILE EMPLOYED BY NICHOLLS STATE UNIVERSITY AS DEAN AND EXECUTIVE DIRECTOR OF THE JOHN FOLSE CULINARY INSTITUTE.

25. KOZAR WAS AWARDED A PAY INCREMENT AFTER EARNING GRADUATE CREDIT IN AN AREA OTHER THAN HIS MAJOR FIELD OF TEACHING.

26. DOODY ASKED PARR TO REPRESENT HIM AT SOME DEANS' COUNCIL AND ACADEMIC COUNCIL MEETINGS.

27. DOODY WROTE IN A LETTER DATED MAY 22, 2008, "THE PROBLEM WITH ANNE PARR IS STRAIGHTFORWARD. BECAUSE OF INSTABILITY AND WEAK LEADERSHIP IN THE DEAN'S OFFICE, MS. PARR, OVER THE PAST SEVERAL YEARS, HAS ACTED IN THE CAPACITY OF THE DEAN TO A LARGE EXTENT."

YOU, THE JURY, ARE ADVISED THAT STIPULATIONS SUCH AS THESE REFLECT AN AGREEMENT BY THE PARTIES AS TO SOMETHING BEING A FACT. THUS, THEY ARE TO BE ACCEPTED BY YOU AS BEING TRUE.

INTRODUCTION TO THE SUBSTANTIVE LAW

AS YOU PREVIOUSLY HAVE BEEN TOLD, THE PLAINTIFF, ANNE PARR, WAS HIRED, IN 2003, AS AN ASSISTANT PROFESSOR AT THE JOHN FOLSE CULINARY INSTITUTE AT NICHOLLS STATE UNIVERSITY. IN MAY 19, 2008, SHE WAS NOTIFIED THAT HER EMPLOYMENT WOULD NOT BE RENEWED BEYOND THE FALL 2008/SPRING 2009 ACADEMIC YEAR. HER EMPLOYMENT AT NICHOLLS THUS ENDED IN MAY 2009.

IN THIS LAWSUIT, PLAINTIFF ASSERTS CLAIMS AGAINST DEFENDANTS UNDER FEDERAL LAW, AND SEEKS RELIEF IN THE FORM OF AN AWARD OF MONETARY DAMAGES. THE DEFENDANTS, STEPHEN T. HULBERT, CARROLL FALCON, ALTON F. DOODY, RANDOLPH CHERAMIE, AND THE BOARD OF SUPERVISORS FOR THE UNIVERSITY OF LOUISIANA SYSTEM DENY THE VALIDITY OF PLAINTIFF'S ASSERTED CLAIMS AND REQUEST FOR RELIEF.

UNLESS OTHERWISE INDICATED, ANY REFERENCES IN THESE INSTRUCTIONS TO THE "INDIVIDUAL DEFENDANTS" REFERS TO ONLY DEFENDANTS HULBERT, FALCON, DOODY, AND CHERAMIE.

CLAIMS UNDER COPYRIGHT ACT

AMONGST PLAINTIFF'S CLAIMS ARE CLAIMS ASSERTED UNDER THE FEDERAL COPYRIGHT ACT. SPECIFICALLY, PLAINTIFF ASSERTS THAT SHE HAS A COPYRIGHT WITH RESPECT TO A COURSE CALLED FOOD AND CULTURE OF THE AMERICAN SOUTH, WHICH SHE PREVIOUSLY DEVELOPED AND TAUGHT AS CULA 370 AT THE JOHN FOLSE CULINARY INSTITUTE.

WITH CERTAIN EXCEPTIONS, THE OWNER OF A COPYRIGHT HAS THE RIGHT TO EXCLUDE ANY OTHER PERSON FROM REPRODUCING, PREPARING DERIVATIVE WORKS, DISTRIBUTING, PERFORMING, DISPLAYING, OR USING THE WORK COVERED BY COPYRIGHT WITHOUT THE OWNER'S PERMISSION FOR A SPECIFIC PERIOD OF TIME. A COPYRIGHT OWNER MAY ENFORCE THIS RIGHT BY BRINGING AN ACTION FOR COPYRIGHT INFRINGEMENT.

HERE, PLAINTIFF CLAIMS THAT DEFENDANTS HULBERT, FALCON, DOODY, AND CHERAMIE CAUSED AN INFRINGEMENT OF THIS COPYRIGHT TO OCCUR WHEN ANOTHER INSTRUCTOR, MS. MARCELLE BIENVENU, WAS INSTRUCTED TO TEACH CULA 370, FOOD AND CULTURE OF THE AMERICAN SOUTH, AND ALLEGEDLY COPIED AND UTILIZED CERTAIN ASPECTS OF THE MATERIALS THAT PLAINTIFF HAD DEVELOPED FOR THE COURSE.

IN RESPONSE, THE INDIVIDUAL DEFENDANTS DENY THAT PLAINTIFF HAS OR HAD A VALID COPYRIGHT IN THE FOOD AND CULTURE OF THE AMERICAN SOUTH COURSE. TO THE EXTENT THAT A SUCH A COPYRIGHT WAS IN EXISTENCE, DEFENDANTS DENY THAT IT WAS INFRINGED. RATHER, THEY CONTEND THAT ANY SUCH USE BY NICHOLLS' INSTRUCTORS WAS AUTHORIZED. FINALLY, EVEN IF INFRINGEMENT OCCURRED, DEFENDANTS URGE THAT AN AFFIRMATIVE DEFENSE — SPECIFICALLY, THE FAIR USE DEFENSE — APPLIES AND PRECLUDES ANY LIABILITY TO PLAINTIFF.

TO PROVE COPYRIGHT INFRINGEMENT OCCURRED, PLAINTIFF MUST ESTABLISH THAT:

(1) A "VALID COPYRIGHT" EXISTS AS TO THE FOOD AND CULTURE OF THE AMERICAN SOUTH COURSE DEVELOPED BY PLAINTIFF;

(2) SHE IS THE "OWNER" OF THAT COPYRIGHT; AND

(3) MARCELLE BIENVENU, THE INSTRUCTOR OF CULA 370, FOOD AND CULTURE OF THE AMERICAN SOUTH, FOR THE 2009 SUMMER TERM AT THE JOHN FOLSE CULINARY INSTITUTE, AND THE DEVELOPER AND TEACHER OF CULA 401, CULINARY HISTORY OF THE SOUTH, IN THE 2010 SUMMER TERM, "COPIED" CONSTITUENT ELEMENTS OF THE PLAINTIFF'S WORK THAT ARE ORIGINAL.

WITH RESPECT TO THE FIRST ELEMENT, A VALID COPYRIGHT CAN EXIST ONLY AS TO THAT PART(S) OF A WORK OF AUTHORSHIP THAT IS AN ORIGINAL EXPRESSION, AND THAT IS FIXED OR PRODUCED IN ANY TANGIBLE FORM OR MEDIUM OF EXPRESSION THAT IS SUFFICIENTLY PERMANENT OR STABLE TO PERMIT IT TO BE PERCEIVED, HEARD, REPRODUCED, OR OTHERWISE COMMUNICATED WITH OR WITHOUT THE AID OF A MACHINE OR OTHER DEVICE. FOR EXAMPLE, LITERARY WORKS — WORKS IN WHICH WORDS, NUMBERS, OR OTHER VERBAL OR NUMERICAL SYMBOLS OR INDICIA ARE EXPRESSED IN MATERIAL OBJECTS SUCH AS BOOKS, PERIODICALS, MANUSCRIPTS, TAPES, DISKS OR CARDS — CAN BE THE SUBJECT OF A VALID COPYRIGHT. COMPUTER PROGRAMS — SETS OF STATEMENTS OR INSTRUCTIONS TO BE USED DIRECTLY OR INDIRECTLY IN A COMPUTER TO BRING ABOUT A CERTAIN RESULT— ALSO ARE CONSIDERED A TYPE OF LITERARY WORK. A COPYRIGHT LIKEWISE CAN EXIST WITH RESPECT TO PICTORIAL WORKS AND GRAPHIC WORKS, INCLUDING PHOTOGRAPHS.

A WORK IS ORIGINAL IF IT WAS CREATED INDEPENDENTLY, AS OPPOSED TO BEING COPIED FROM ANOTHER WORK. TO BE ORIGINAL, IT MUST CONTAIN AT LEAST SOME MINIMAL DEGREE OF CREATIVITY. THE WORK, HOWEVER, NEED NOT BE COMPLETELY NEW TO BE ORIGINAL. RATHER, A WORK CAN BE ORIGINAL EVEN IF IT INCORPORATES ELEMENTS THAT ARE NOT ORIGINAL TO THE AUTHOR. IT IS ONLY THE ORIGINAL ELEMENTS ADDED BY THE AUTHOR OR CREATOR, HOWEVER, THAT ARE SUBJECT TO PROTECTION BY COPYRIGHT.

COPYRIGHT LAW PROTECTION IS FURTHER LIMITED IN THAT IT ONLY APPLIES TO ORIGINAL EXPRESSIONS IN A WORK. THUS, IT PROTECTS ONLY THE PARTICULAR MANNER OR WAY IN WHICH FACTS, IDEAS, PROCEDURES, PROCESSES, SYSTEMS, METHODS OF OPERATION, CONCEPTS, PRINCIPLES, DISCOVERIES, AND/OR DEVICES ARE EXPRESSED IN THE WORK. IT DOES NOT, HOWEVER, PROTECT THE UNDERLYING FACTS, IDEAS, PROCEDURES, PROCESSES, SYSTEMS, METHODS OF OPERATION, CONCEPTS, PRINCIPLES, DISCOVERIES, AND/OR DEVICES THEMSELVES.

THUS, COPYRIGHT LAW ONLY ALLOWS THE OWNER OF AN ORIGINAL WORK TO PREVENT OTHERS FROM COPYING THE PARTICULAR WAY OR FORM THE AUTHOR USED TO EXPRESS THE IDEAS IN THE AUTHOR'S WORK SUBJECT TO THE FOLLOWING INSTRUCTIONS. COPYRIGHT LAW DOES NOT GIVE THE AUTHOR THE RIGHT TO PREVENT OTHERS FROM COPYING OR USING THE UNDERLYING IDEAS CONTAINED IN THE WORK. THE COPYRIGHT IS NOT VIOLATED WHEN SOMEONE USES AN IDEA FROM A COPYRIGHTED WORK, AS LONG AS THE PARTICULAR WAY OF EXPRESSING THAT IDEA IN THE WORK IS NOT COPIED.

FOR EXAMPLE, THE IDEA OR CONCEPT OF A SECRET AGENT WHO SAVES THE WORLD FROM IMPENDING DISASTER IS NOT PROTECTED BY COPYRIGHT, BUT A PARTICULAR EXPRESSION OF THAT IDEA — SUCH AS A JAMES BOND MOVIE — MAY BE PROTECTED BY COPYRIGHT.

YOU ARE ADDITIONALLY ADVISED THAT, IF A COPYRIGHT EXISTS IN A WORK, IT DOES SO AUTOMATICALLY AT THE MOMENT THE WORK IS FIXED IN ANY TANGIBLE MEDIUM OF EXPRESSION. THE OWNER OF THE COPYRIGHT MAY SEEK TO REGISTER IT WITH THE COPYRIGHT OFFICE OF THE LIBRARY OF CONGRESS BY DELIVERING A REGISTRATION APPLICATION AND A COPY OF THE COPYRIGHTED WORK. AFTER EXAMINATION AND A DETERMINATION THAT THE MATERIAL DEPOSITED CONSTITUTES COPYRIGHTABLE SUBJECT MATTER AND THAT LEGAL AND FORMAL REQUIREMENTS ARE SATISFIED, THE REGISTRAR OF COPYRIGHTS REGISTERS THE WORK AND ISSUES A CERTIFICATE OF REGISTRATION TO THE COPYRIGHT OWNER. A COPYRIGHT DOES NOT HAVE TO BE REGISTERED, HOWEVER, TO EXIST. IN THIS MATTER, PLAINTIFF HAS APPLIED FOR REGISTRATION BUT HAS NOT YET BEEN INFORMED BY THE COPYRIGHT OFFICE WHETHER REGISTRATION HAS BEEN APPROVED.

AS PREVIOUSLY INDICATED, THE SECOND ELEMENT OF PLAINTIFF'S COPYRIGHT INFRINGEMENT CLAIM IS ESTABLISHING THAT SHE IS THE OWNER OF ANY VALID COPYRIGHT IN THE COURSE AT ISSUE. THE CREATOR OF A WORK, OR THE PERSON WHO SELECTS, ASSEMBLES, AND ARRANGES PRE-EXISTING WORKS, MATERIALS, OR DATA IN SUCH A WAY THAT THE RESULTING COMPILATION OR COLLECTIVE WORK IS CONSIDERED ORIGINAL, OR THE PERSON WHO CREATES A DERIVATIVE WORK — ONE THAT IS DISTINCT FROM, BUT ADDS AN ORIGINAL EXPRESSION TO, AN EARLIER WORK — GENERALLY IS CONSIDERED THE AUTHOR, CREATOR, AND OWNER OF THE COPYRIGHT.

WITH A "WORK MADE FOR HIRE", HOWEVER, THE EMPLOYER OR OTHER PERSON FOR WHOM THE WORK WAS PREPARED IS CONSIDERED THE AUTHOR FOR PURPOSES OF THIS TITLE, AND, UNLESS THE PARTIES HAVE EXPRESSLY AGREED OTHERWISE IN A WRITTEN INSTRUMENT SIGNED BY THEM, OWNS ALL OF THE RIGHTS COMPRISED IN THE COPYRIGHT. THUS, UNLESS THE EMPLOYEE AND EMPLOYER HAVE OTHERWISE AGREED, A WORK THAT IS CREATED OR PREPARED BY AN EMPLOYEE IN CARRYING OUT THE EMPLOYER'S BUSINESS IS A WORK MADE FOR HIRE AND IS OWNED BY THE EMPLOYER.

IN DEMONSTRATING THE THIRD ELEMENT — ACTIONABLE COPYING — A PLAINTIFF MUST PROVE: (1) FACTUAL COPYING AND (2) SUBSTANTIAL SIMILARITY. FACTUAL COPYING CAN BE PROVED BY DIRECT OR CIRCUMSTANTIAL EVIDENCE. TO MAKE OUT A CIRCUMSTANTIAL CLAIM OF FACTUAL COPYING, A PLAINTIFF MUST PROVE THAT (1) THE DEFENDANT HAD ACCESS TO THE COPYRIGHTED WORK BEFORE CREATION OF THE INFRINGING WORK; AND (2) AND THE WORKS CONTAIN SIMILARITIES THAT ARE PROBATIVE OF COPYING. IN OTHER WORDS, FOR THE CIRCUMSTANTIAL CASE OF FACTUAL COPYING, THE COMBINED EXISTENCE OF ACCESS TO THE COPYRIGHTED WORK AND SIMILARITIES BETWEEN CERTAIN PARTS OF THE TWO WORKS ESTABLISHES THE ASSUMPTION, AS A MATTER OF LAW, THAT COPYING IN FACT OCCURRED. PROOF OF ACCESS REQUIRES PROOF OF A REASONABLE OPPORTUNITY TO VIEW OR TO COPY THE PLAINTIFF'S WORK. ALTERNATIVELY, A PLAINTIFF ALSO MAY ESTABLISH AN INFERENCE OF FACTUAL COPYING BY SHOWING THAT SUCH A "STRIKING SIMILARITY" EXISTS BETWEEN THE TWO WORKS THAT THE SIMILARITY COULD ONLY BE EXPLAINED BY ACTUAL COPYING, RATHER THAN BY COINCIDENCE, INDEPENDENT CREATION, OR A PRIOR COMMON SOURCE.

ONCE A PLAINTIFF CIRCUMSTANTIALLY ESTABLISHES AN INFERENCE OF FACTUAL COPYING, THE DEFENDANT MAY REBUT THAT INFERENCE, AND ESCAPE ANY LIABILITY FOR INFRINGEMENT, IF HE OR SHE CAN PROVE THAT HE OR SHE INDEPENDENTLY CREATED THE WORK.

IF A DEFENDANT DOES NOT REBUT AN INFERENCE OF FACTUAL COPYING BY ESTABLISHING INDEPENDENT CREATION, THE PLAINTIFF, TO ESTABLISH ACTIONABLE COPYING, MUST THEN DEMONSTRATE THAT THE COPYRIGHTED WORK AND THE ALLEGEDLY INFRINGING WORK ARE "SUBSTANTIALLY SIMILAR." THIS INQUIRY DICTATES WHETHER FACTUAL COPYING, ONCE ESTABLISHED, IS LEGALLY ACTIONABLE COPYING, AND REQUIRES THAT A SIDE-BY-SIDE COMPARISON MUST BE MADE BETWEEN THE ORIGINAL AND THE COPY TO DETERMINE WHETHER A REASONABLE PERSON WOULD VIEW THE TWO WORKS AS SUBSTANTIALLY SIMILAR. THE QUESTION IN EACH CASE IS WHETHER THE SIMILARITY — THAT IS THE MATERIAL COMMON TO BOTH PARTIES' WORKS — RELATES TO MATTER THAT CONSTITUTES A SUBSTANTIAL PORTION OF PLAINTIFF'S WORK. MAKING THIS DETERMINATION REQUIRES CONSIDERATION OF WHETHER THE COPYING IS QUANTITATIVELY AND QUALITATIVELY SUFFICIENT TO SUPPORT THE LEGAL CONCLUSION THAT ACTIONABLE COPYING, AND THUS INFRINGEMENT, HAS OCCURRED.

IN OTHER WORDS, SUBSTANTIAL SIMILARITY TAKES INTO ACCOUNT THE QUALITATIVE IMPORTANCE OF THE COPIED MATERIAL TO THE PLAINTIFF'S WORK, IN ADDITION TO THE QUANTITATIVE IMPORTANCE OF THAT MATERIAL. THUS, EVEN IF A COPIED PORTION OF A PLAINTIFF'S WORK IS RELATIVELY SMALL IN PROPORTION TO THE ENTIRE WORK, SUBSTANTIAL SIMILARITY MAY NEVERTHELESS PROPERLY BE FOUND IF THAT PORTION IS QUALITATIVELY IMPORTANT TO PLAINTIFF'S WORK.

HERE, NONE OF THE DEFENDANTS CAN BE LIABLE FOR COPYRIGHT INFRINGEMENT FOR ANY COPYING OR USE OF MATERIAL SUBJECT TO A VALID COPYRIGHT HELD BY PLAINTIFF IF DEFENDANTS ESTABLISH THAT, THROUGH THE PROVISIONS OF THE NICHOLLS POLICY AND PROCEDURE MANUAL, PLAINTIFF AUTHORIZED SUCH COPYING OR OTHER USE.

IN ADDITION, THE FAIR USE DOCTRINE PROVIDES AN AFFIRMATIVE DEFENSE TO UNAUTHORIZED COPYING OF OTHERWISE PROTECTED EXPRESSION IN SOME INSTANCES. UNDER THE FAIR USE DOCTRINE, ONE WHO IS NOT THE OWNER OF THE COPYRIGHT MAY USE THE COPYRIGHTED WORK IN A REASONABLE MANNER UNDER THE CIRCUMSTANCES, WITHOUT THE CONSENT OF THE COPYRIGHT OWNER, IF THAT USE WOULD ADVANCE THE PUBLIC INTEREST. SUCH USE OF A COPYRIGHTED WORK IS REFERRED TO IN THE LAW AS A "FAIR USE." THE OWNER OF A COPYRIGHT CANNOT PREVENT OTHERS FROM MAKING A FAIR USE OF THE OWNER'S COPYRIGHTED WORK. FAIR USES MAY INCLUDE, BUT ARE NOT NECESSARILY LIMITED TO, CRITICISM, COMMENT, PARODY, NEWS REPORTING, TEACHING, SCHOLARSHIP, AND RESEARCH. THE DEFENDANT HAS THE BURDEN OF PROVING THIS DEFENSE BY A PREPONDERANCE OF THE EVIDENCE.

IN DETERMINING WHETHER ANY USE OF MATERIAL PROTECTED BY A COPYRIGHT OWNED BY PLAINTIFF WAS FAIR, AND THUS PRECLUSIVE OF ANY LIABILITY TO ANY OF THE DEFENDANTS, YOU SHOULD CONSIDER THE FOLLOWING FACTORS:

1. THE PURPOSE AND CHARACTER OF THE USE, INCLUDING WHETHER THE USE IS OF A COMMERCIAL NATURE OR IS FOR NON-PROFIT EDUCATIONAL PURPOSES, WHETHER THE USE IS FOR A PURPOSE DIFFERENT FROM THE PURPOSE OF THE ORIGINAL MATERIAL, AND WHETHER THE USE COMPETES WITH THE ORIGINAL WORK;

2. THE NATURE OF THE COPYRIGHTED WORK, INCLUDING WHETHER IT IS PUBLISHED OR UNPUBLISHED, FACTUAL OR FICTIONAL, AND THE EXTENT OF ITS CREATIVITY;

3. THE AMOUNT AND SUBSTANTIALITY OF THE PORTION USED IN RELATION TO THE COPYRIGHTED WORK AS A WHOLE, INCLUDING THE REASONABLENESS OF THE JUSTIFICATION FOR THE COPYING AND WHETHER THE ACTUAL USE WAS REASONABLE IN RELATION TO THE PURPOSE OF THE COPYING;

4. THE EFFECT OF THE USE UPON THE POTENTIAL MARKET FOR OR VALUE OF THE COPYRIGHTED WORK, INCLUDING WHETHER THE USE DISPLACES OR SUBSTITUTES FOR THE ORIGINAL WORK; AND

5. THE USER'S GOOD FAITH AND FAIR DEALING.

YOU HAVE BEEN TOLD THAT THE PLAINTIFF CLAIMS THAT DEFENDANTS HULBERT, FALCON, DOODY, AND CHERAMIE CAUSED AN INFRINGEMENT OF THIS COPYRIGHT TO OCCUR WHEN ANOTHER INSTRUCTOR, MS. MARCELLE BIENVENU, WAS INSTRUCTED TO TEACH CULA 370, FOOD AND CULTURE OF THE AMERICAN SOUTH, AND ALLEGEDLY COPIED AND UTILIZED CERTAIN ASPECTS OF THE MATERIALS THAT PLAINTIFF HAD DEVELOPED FOR THE COURSE. MS. BIENVENU IS A NOT A DEFENDANT IN THIS ACTION. ONE OR MORE OF THE DEFENDANTS TO THIS ACTION, HOWEVER, CAN BE HELD LEGALLY RESPONSIBLE FOR ANY SUCH COPYRIGHT INFRINGEMENT FOUND TO HAVE OCCURRED AS A RESULT OF MS. BIENVENU'S ACTIONS IF THE PLAINTIFF DEMONSTRATES THAT VICARIOUS INFRINGEMENT OR CONTRIBUTORY INFRINGEMENT OCCURRED.

IF YOU FIND THAT MS. BIENVENU'S ACTIONS CONSTITUTED ACTIONABLE COPYRIGHT INFRINGEMENT, YOU MAY FIND THAT ONE OR MORE DEFENDANTS COMMITTED VICARIOUS INFRINGEMENT IF PLAINTIFF PROVES THE FOLLOWING ELEMENTS BY A PREPONDERANCE OF THE EVIDENCE:

1. THE DEFENDANT PROFITED DIRECTLY FROM THE INFRINGING ACTIVITY OF MS. BIENVENU;

2. THE DEFENDANT HAD THE RIGHT AND ABILITY TO SUPERVISE, CONTROL OR STOP THE INFRINGING ACTIVITY OF MS. BIENVENU; AND

3. THE DEFENDANT FAILED TO EXERCISE THAT RIGHT AND ABILITY. IF YOU FIND THAT MS. BIENVENU'S ACTIONS CONSTITUTED ACTIONABLE COPYRIGHT INFRINGEMENT, YOU MAY FIND THAT ONE OR MORE DEFENDANTS COMMITTED CONTRIBUTORY INFRINGEMENT, IF PLAINTIFF PROVES THE FOLLOWING ELEMENTS BY A PREPONDERANCE OF THE EVIDENCE:

1. THE DEFENDANT(S) KNEW OR HAD REASON TO KNOWN OF MS. BIENVENU'S INFRINGING ACTIVITY; AND

2. THE DEFENDANT INTENTIONALLY INDUCED, CAUSED, ENCOURAGED, OR MATERIALLY CONTRIBUTED TO MS. BIENVENU'S INFRINGING ACTIVITY.

IN DECIDING PLAINTIFF'S CLAIMS UNDER THE FEDERAL COPYRIGHT ACT, YOU ADDITIONALLY WILL BE ASKED TO DECIDE WHETHER, IN LIGHT OF THE FOREGOING LEGAL CONCEPTS, WHICH THE INDIVIDUAL DEFENDANTS ARE PRESUMED TO HAVE KNOWN DURING ALL RELEVANT TIMES, THE DEFENDANT(S) CONDUCT WAS NEVERTHELESS OBJECTIVELY REASONABLE, THAT IS, WHETHER ALL REASONABLE PERSONS IN THAT DEFENDANT'S OR THOSE DEFENDANTS' CIRCUMSTANCES WOULD HAVE NOT THEN KNOWN THAT THE CONDUCT IN QUESTION VIOLATED THE PLAINTIFF'S RIGHTS UNDER THE FEDERAL COPYRIGHT ACT.

DAMAGES FOR CLAIMS UNDER THE COPYRIGHT ACT

IF YOU FIND FOR THE PLAINTIFF ON THE PLAINTIFF'S COPYRIGHT INFRINGEMENT CLAIM, YOU MUST DETERMINE THE PLAINTIFF'S DAMAGES. THE PLAINTIFF SEEKS A STATUTORY DAMAGE AWARD FOR THE WORK INFRINGED.

YOU MAY AWARD AS STATUTORY DAMAGES THE AMOUNT THAT YOU FIND TO BE FAIR UNDER THE CIRCUMSTANCES, BUT THE AMOUNT MUST BE THAN $750, NOR MORE THAN $30,000, FOR EACH WORK THAT YOU CONCLUDE WAS INFRINGED.

IN DETERMINING THE APPROPRIATE AMOUNT TO BE AWARDED, YOU MAY CONSIDER THE FOLLOWING FACTORS:

1. THE AMOUNT, OF REVENUES, IF ANY, THAT PLAINTIFF LOST BECAUSE OF THE INFRINGEMENT;

2. THE DIFFICULTY OF PROVING PLAINTIFF'S ACTUAL DAMAGES FROM THE INFRINGEMENT;

3. THE CIRCUMSTANCES OF THE INFRINGEMENT;

4. WHETHER DEFENDANT(S) INTENTIONALLY INFRINGED PLAINTIFF'S COPYRIGHT; AND

5. DETERRENCE OF FUTURE INFRINGEMENT.

HOWEVER, IF YOU FIND THE INFRINGEMENT WAS WILLFUL, YOU MAY AWARD AS MUCH AS $150,000 FOR EACH WORK WILLFULLY INFRINGED. AN INFRINGEMENT IS CONSIDERED WILLFUL WHEN THE PLAINTIFF HAS PROVED BOTH OF THE FOLLOWING ELEMENTS BY A PREPONDERANCE OF THE EVIDENCE:

1. THE DEFENDANT ENGAGED IN ACTS THAT INFRINGED THE COPYRIGHT; AND

2. THE DEFENDANT KNEW THAT THOSE ACTS INFRINGED THE COPYRIGHT.

ON THE OTHER HAND, IF YOU FIND THE INFRINGEMENT WAS INNOCENT, YOU MAY AWARD AS LITTLE AS $200 FOR EACH WORK INNOCENTLY INFRINGED. AN INFRINGEMENT IS CONSIDERED INNOCENT WHEN THE DEFENDANT HAS PROVED BOTH OF THE FOLLOWING ELEMENTS BY A PREPONDERANCE OF THE EVIDENCE:

1. THE DEFENDANT WAS NOT AWARE THAT HIS, HER, OR ITS ACTS CONSTITUTED INFRINGEMENT OF THE COPYRIGHT; AND

2. THE DEFENDANT HAD NO REASON TO BELIEVE THAT HIS, HER, OR ITS ACTS CONSTITUTED AN INFRINGEMENT OF THE COPYRIGHT.

CLAIMS UNDER THE DIGITAL MILLENNIUM COPYRIGHT ACT, 17 U.S.C. § 1202

PLAINTIFF ADDITIONALLY ASSERTS A CLAIM UNDER THE DIGITAL MILLENNIUM COPYRIGHT ACT, 17 U.S.C. §1202. SPECIFICALLY, SHE CLAIMS THAT THE MATERIAL SUBMITTED BY HER TO THE REGISTRAR OF COPYRIGHT, OR DEPOSITED WITH THE CULINARY DEAN'S OFFICE, CONTAINED COPYRIGHT MANAGEMENT INFORMATION, AND THAT ONE OF MORE OF THE DEFENDANTS AND MARCELLE BIENVENU APPROPRIATED AND REPUBLISHED ON THE INTERNET, WITHOUT LICENSE OR PERMISSION, AND AFTER THE FILING OF THIS LAWSUIT, SUBSTANTIALLY VERBATIM PORTIONS OF PLAINTIFF'S ELECTRONICALLY-PUBLISHED SYLLABUS, AND OTHER MATERIAL FROM FOOD AND CULTURE OF THE AMERICAN SOUTH, WITHOUT INCLUDING HER COPYRIGHT MANAGEMENT INFORMATION IN THAT PUBLICATION.

PLAINTIFF FURTHER CONTENDS THAT THE DEFENDANTS KNEW OR SHOULD HAVE KNOWN THAT THEIR ACTIONS WOULD CAUSE AN INFRINGEMENT OF PLAINTIFF'S RIGHTS UNDER TITLE 17 OF THE UNITED STATES CODE, WHICH SETS FORTH VARIOUS FEDERAL COPYRIGHT LAWS.

RELATIVE TO THIS CLAIM, SECTION 1202 PROVIDES, IN PERTINENT PART:

IN ORDER FOR THE PLAINTIFF TO PREVAIL ON HER CLAIMS ASSERTED UNDER THE DIGITAL MILLENNIUM COPYRIGHT ACT, SHE MUST FIRST ESTABLISH THE FOLLOWING:

1. A VALID COPYRIGHT IN FOOD AND CULTURE OF THE AMERICAN SOUTH;

2. PUBLICATION ON THE INTERNET OF MATERIAL COPIED FROM FOOD AND CULTURE OF THE AMERICAN SOUTH;

3. PUBLICATION OF THE COPYRIGHTED WORK KNOWING THAT COPYRIGHT MANAGEMENT INFORMATION, SUCH AS PLAINTIFF'S NAME, THE CORRECT TITLE OF THE COPYRIGHTED WORK, AND PLAINTIFF'S CLAIM OF OWNERSHIP OF THE INTELLECTUAL PROPERTY RIGHTS IN THE WORK, HAD BEEN REMOVED OR ALTERED FROM THE COPYRIGHTED WORK WITHOUT THE AUTHORITY OF THE COPYRIGHT OWNER OR THE LAW;

4. HAVING KNOWLEDGE, OR REASONABLE GROUNDS TO KNOW, THAT THE PUBLICATION WITHOUT COPYRIGHT MANAGEMENT INFORMATION, AS ALLEGED, WOULD INDUCE, ENABLE, FACILITATE, OR CONCEAL AN INFRINGEMENT OF ANY RIGHT UNDER TITLE 17 OF THE UNITED STATES; AND

5. THAT ONE OR MORE OF THE DEFENDANTS WAS VICARIOUSLY RESPONSIBLE FOR THE PUBLICATION OR CONTRIBUTED TO THAT PUBLICATION.

TO ESTABLISH VICARIOUS LIABILITY WITH RESPECT TO A DEFENDANT, PLAINTIFF MUST PROVE THE FOLLOWING ELEMENTS BY A PREPONDERANCE OF THE EVIDENCE:

1. THE DEFENDANT PROFITED DIRECTLY FROM THE AFOREMENTIONED PUBLICATION;

2. THE DEFENDANT HAD THE RIGHT AND ABILITY TO SUPERVISE, CONTROL OR STOP THIS PUBLICATION; AND

3. THE DEFENDANT FAILED TO EXERCISE THAT RIGHT AND ABILITY.

TO ESTABLISH CONTRIBUTORY LIABILITY WITH RESPECT TO A DEFENDANT, PLAINTIFF MUST PROVE THE FOLLOWING ELEMENTS BY A PREPONDERANCE OF THE EVIDENCE:

1. THE DEFENDANT(S) KNEW OR HAD REASON TO KNOW OF THE PUBLICATION; AND

2. THE DEFENDANT(S) INTENTIONALLY INDUCED, CAUSED, ENCOURAGED, OR MATERIALLY CONTRIBUTED TO THE PUBLICATION.

IN DECIDING PLAINTIFF'S CLAIMS UNDER THE DIGITAL MILLENNIUM COPYRIGHT ACTION, 17 U.S.C. §1202, YOU ADDITIONALLY WILL BE ASKED TO DECIDE WHETHER, IN LIGHT OF THE FOREGOING LEGAL CONCEPTS, WHICH THE INDIVIDUAL DEFENDANTS ARE PRESUMED TO HAVE KNOWN DURING ALL RELEVANT TIMES, THE DEFENDANT(S) CONDUCT WAS NEVERTHELESS OBJECTIVELY REASONABLE, THAT IS, WHETHER ALL REASONABLE PERSONS IN THAT DEFENDANT'S OR THOSE DEFENDANTS' CIRCUMSTANCES WOULD HAVE NOT THEN KNOWN THAT THE CONDUCT IN QUESTION VIOLATED THE PLAINTIFF'S RIGHTS UNDER THE DIGITAL MILLENNIUM COPYRIGHT ACT.

DAMAGES FOR CLAIMS UNDER THE DIGITAL MILLENNIUM COPYRIGHT ACT, 17 U.S.C. § 1202.

IF YOU FIND FOR PLAINTIFF WITH RESPECT TO HER CLAIM(S) UNDER THE DIGITAL MILLENNIUM COPYRIGHT ACT, YOU MUST DETERMINE THE PLAINTIFF'S DAMAGES. THE PLAINTIFF SEEKS A STATUTORY DAMAGE AWARD FOR THE VIOLATION(S). UNDER § 1202 OF THE DIGITAL MILLENNIUM COPYRIGHT ACT, YOU MAY AWARD NOT LESS THAN $2,500 OR MORE THAN $25,000 FOR EACH SUCH VIOLATION.

IN ADDITION TO SEEKING RELIEF UNDER FEDERAL COPYRIGHT LAWS, PLAINTIFF ASSERTS CLAIMS ARISING OUT OF HER EMPLOYMENT AT THE JOHN FOLSE CULINARY INSTITUTE AND THE NON-RENEWAL OF THAT EMPLOYMENT, AND SEEKS AN AWARD OF MONETARY DAMAGES FOR THOSE CLAIMS. I WILL NOW EXPLAIN EACH OF THOSE CLAIMS, THE ELEMENTS OF PROOF REQUIRED FOR EACH OF THOSE CLAIMS, AND, LASTLY, EXPLAIN THE LAW APPLICABLE TO ANY DAMAGES TO BE AWARDED FOR ANY OF THESE CLAIMS ON WHICH YOU, THE JURY, FIND PLAINTIFF TO PREVAIL.

CLAIMS UNDER 42 U.S.C. §1983

PLAINTIFF ALSO ASSERTS CLAIMS UNDER 42 U.S.C. §1983 AGAINST THE INDIVIDUAL DEFENDANTS. THAT STATUTORY PROVISION PROVIDES A MONETARY REMEDY AGAINST ANYONE WHO, "UNDER COLOR OF STATE LAW, INTENTIONALLY DEPRIVES A PERSON OF RIGHTS SECURED BY THE UNITED STATES CONSTITUTION AND CERTAIN OTHER FEDERAL LAWS. HERE, PLAINTIFF ASSERTS THAT THE INDIVIDUAL DEFENDANTS, THAT IS, DEFENDANTS HULBERT, DOODY, AND FALCON, WHILE ACTING UNDER COLOR OF STATE LAW, INTENTIONALLY VIOLATED(OR CAUSED SUCH A VIOLATION OF) HER RIGHTS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE CONSTITUTION TO NOT BE DEPRIVED OF HER PROPERTY WITHOUT DUE PROCESS OF LAW ("DUE PROCESS RIGHTS").

WITH RESPECT TO HER DUE PROCESS RIGHTS, PLAINTIFF CLAIMS THAT THE TERMS OF HER EMPLOYMENT CONTRACT, AS SET FORTH IN THE NICHOLLS POLICY AND PROCEDURE MANUAL, PROVIDED HER WITH A PROPERTY RIGHT TO A SUMMATIVE EVALUATION AND FORMAL CONSIDERATION FOR TENURE AND PROMOTION, IN HER SIXTH-YEAR OF PROBATIONARY EMPLOYMENT (FALL 2008-SPRING 2009), IN ACCORDANCE WITH THE PROCESS SET FORTH IN CHAPTER 2 OF THE NICHOLLS POLICY AND PROCEDURE MANUAL.

PLAINTIFF ALSO CLAIMS THAT THE TERMS OF HER EMPLOYMENT CONTRACT PROVIDED HER WITH A PROPERTY RIGHT TO PROTECTION FROM RETRIBUTION OR REPRISAL FOR GOOD FAITH REPORTING, TO NICHOLLS ADMINISTRATORS, OF PERCEIVED VIOLATIONS BY FELLOW EMPLOYEES OF FEDERAL OR STATE LAW, ETHICAL RULES, AND BOARD OF SUPERVISORS AND/OR NICHOLLS OTHER BY-LAWS, RULES, POLICIES, AND/OR PROCEDURES. ACCORDING TO PLAINTIFF, ONE OR MORE OF THE INDIVIDUAL DEFENDANTS CAUSED AN INTENTIONAL DEPRIVATION OF THESE RIGHTS WITHOUT ALSO PROVIDING THE REQUISITE DUE PROCESS.

THUS, TO BE ENTITLED TO RELIEF UNDER 42 U.S.C. §1983 RELATIVE TO HER DUE PROCESS CLAIMS, PLAINTIFF MUST PROVE BY A PREPONDERANCE OF THE EVIDENCE EACH OF THE FOLLOWING:

1. THAT THE ACTIONS OF THE INDIVIDUAL DEFENDANTS ABOUT WHICH PLAINTIFF COMPLAINS OCCURRED "UNDER COLOR OF THE LAW OF THE STATE OF LOUISIANA";

2. THAT PLAINTIFF'S EMPLOYMENT CONTRACT PROVIDED HER A PROPERTY RIGHT TO A SUMMATIVE EVALUATION AND FORMAL CONSIDERATION FOR TENURE AND PROMOTION, IN HER SIXTH-YEAR OF PROBATIONARY EMPLOYMENT (FALL 2008-SPRING 2009), IN ACCORDANCE WITH THE PROCESS SET FORTH IN CHAPTER 2 OF THE NICHOLLS POLICY AND PROCEDURE MANUAL, AND/OR A PROPERTY RIGHT TO PROTECTION FROM RETRIBUTION OR REPRISAL FOR GOOD FAITH REPORTING, TO NICHOLLS ADMINISTRATORS, OF PERCEIVED VIOLATIONS BY FELLOW EMPLOYEES OF FEDERAL OR STATE LAW, ETHICAL RULES, AND BOARD OF SUPERVISORS AND/OR NICHOLLS OTHER BY-LAWS, RULES, POLICIES, AND/OR PROCEDURES;

3. THAT ONE OR MORE OF THE INDIVIDUAL DEFENDANTS INTENTIONALLY DEPRIVED HER OF ONE OR BOTH OF THESE PROPERTY RIGHTS WITHOUT ALSO PROVIDING HER WITH DUE PROCESS OF LAW, OR INTENTIONALLY CAUSED HER TO BE DEPRIVED OF ONE OR BOTH OF THOSE RIGHTS WITHOUT ALSO RECEIVING DUE PROCESS OF LAW; AND

4. THAT THE ACTIONS OF THE INDIVIDUAL DEFENDANT OR DEFENDANTS CONSTITUTING THE VIOLATION OR VIOLATIONS OF PLAINTIFF'S CONSTITUTIONAL DUE PROCESS RIGHTS WERE THE CAUSE-IN-FACT AND PROXIMATE OR LEGAL CAUSE OF PLAINTIFF'S DAMAGES.

IN EVALUATING PLAINTIFF'S DUE PROCESS CLAIMS UNDER 42 U.S.C. §1983, YOU ARE INSTRUCTED THAT YOU ARE TO ASSUME THAT THE INDIVIDUAL DEFENDANTS ACTED, AT ALL RELEVANT TIMES, "UNDER COLOR OF STATE LAW." YOU ALSO ARE INSTRUCTED THAT YOU ARE TO ASSUME THAT PLAINTIFF'S CONTRACT PROVIDED HER WITH THE PROPERTY RIGHTS SHE ALLEGES. FINALLY, YOU ARE INSTRUCTED THAT CONSTITUTIONAL DUE PROCESS REQUIRES THAT SHE HAVE RECEIVED TIMELY AND ADEQUATE NOTICE AND THE OPPORTUNITY TO BE HEARD RELATIVE TO THE ALLEGED DEPRIVATION OF ONE OR BOTH OF THE REFERENCED PROPERTY RIGHTS.

AN ACT OR A FAILURE TO ACT IS A "CAUSE-IN-FACT" OF AN INJURY OR DAMAGES IF IT APPEARS FROM THE EVIDENCE THAT THE ACT OR OMISSION PLAYED A SUBSTANTIAL PART IN BRINGING ABOUT OR ACTUALLY CAUSING THE INJURY OR DAMAGES. AN ACT OR OMISSION IS A "PROXIMATE OR LEGAL CAUSE" OF THE PLAINTIFF'S INJURIES OR DAMAGES IF IT APPEARS FROM THE EVIDENCE THAT THE INJURY OR DAMAGE WAS A REASONABLY FORESEEABLE CONSEQUENCE OF THE ACT OR OMISSION.

IN DECIDING PLAINTIFF'S CLAIMS UNDER 42 U.S.C. §1983, YOU ADDITIONALLY WILL BE ASKED TO DECIDE WHETHER, IN LIGHT OF THE FOREGOING LEGAL CONCEPTS, WHICH THE INDIVIDUAL DEFENDANTS ARE PRESUMED TO HAVE KNOWN DURING ALL RELEVANT TIMES, THE DEFENDANT(S) CONDUCT WAS NEVERTHELESS OBJECTIVELY REASONABLE, THAT IS, WHETHER ALL REASONABLE PERSONS IN THAT DEFENDANT'S OR THOSE DEFENDANTS' CIRCUMSTANCES WOULD HAVE NOT THEN KNOWN THAT THE CONDUCT IN QUESTION VIOLATED THE PLAINTIFF'S RIGHTS UNDER 42 U.S.C. §1983.

DAMAGES FOR CLAIMS UNDER 42 U.S.C. §1983

IF THE PLAINTIFF HAS PROVEN HER CLAIMS AGAINST THE DEFENDANT(S) BY A PREPONDERANCE OF THE EVIDENCE, YOU MUST DETERMINE THE DAMAGES TO WHICH THE PLAINTIFF IS ENTITLED. YOU SHOULD NOT INTERPRET THE FACT THAT I HAVE GIVEN INSTRUCTIONS ABOUT THE PLAINTIFF'S DAMAGES AS AN INDICATION IN ANY WAY THAT I BELIEVE THAT THE PLAINTIFF SHOULD, OR SHOULD NOT, WIN THIS CASE. IT IS YOUR TASK FIRST TO DECIDE WHETHER ONE OR MORE OF THE DEFENDANTS ARE LIABLE. I AM INSTRUCTING YOU ON DAMAGES ONLY SO THAT YOU WILL HAVE GUIDANCE IN THE EVENT YOU DECIDE THAT A DEFENDANT IS LIABLE AND THAT THE PLAINTIFF IS ENTITLED TO RECOVER MONEY FROM THE DEFENDANT(S).

COMPENSATORY DAMAGES

IF YOU FIND THAT THE DEFENDANT(S) IS LIABLE TO THE PLAINTIFF, THEN YOU MUST DETERMINE AN AMOUNT THAT IS FAIR COMPENSATION FOR ALL OF THE PLAINTIFF'S DAMAGES. THESE DAMAGES ARE CALLED COMPENSATORY DAMAGES. THE PURPOSE OF COMPENSATORY DAMAGES IS TO MAKE THE PLAINTIFF WHOLE — THAT IS, TO COMPENSATE THE PLAINTIFF FOR THE DAMAGE THAT THE PLAINTIFF HAS SUFFERED. YOU MAY AWARD COMPENSATORY DAMAGES ONLY FOR INJURIES THAT THE PLAINTIFF PROVES WERE PROXIMATELY CAUSED BY THE DEFENDANT'S ALLEGEDLY WRONGFUL CONDUCT. THE DAMAGES THAT YOU AWARD MUST BE FAIR COMPENSATION FOR ALL OF THE PLAINTIFF'S DAMAGES, NO MORE AND NO LESS. COMPENSATORY DAMAGES ARE NOT ALLOWED AS A PUNISHMENT AND CANNOT BE IMPOSED OR INCREASED TO PENALIZE THE DEFENDANT. YOU SHOULD NOT AWARD COMPENSATORY DAMAGES FOR SPECULATIVE INJURIES, BUT ONLY FOR THOSE INJURIES WHICH THE PLAINTIFF HAS ACTUALLY SUFFERED OR THAT THE PLAINTIFF IS REASONABLY LIKELY TO SUFFER IN THE FUTURE. IF YOU DECIDE TO AWARD COMPENSATORY DAMAGES, YOU SHOULD BE GUIDED BY DISPASSIONATE COMMON SENSE. COMPUTING DAMAGES MAY BE DIFFICULT, BUT YOU MUST NOT LET THAT DIFFICULTY LEAD YOU TO ENGAGE IN ARBITRARY GUESSWORK. ON THE OTHER HAND, THE LAW DOES NOT REQUIRE THAT THE PLAINTIFF PROVE THE AMOUNT OF HER LOSSES WITH MATHEMATICAL PRECISION, BUT ONLY WITH AS MUCH DEFINITENESS AND ACCURACY AS THE CIRCUMSTANCES PERMIT. YOU MUST USE SOUND DISCRETION IN FIXING AN AWARD OF DAMAGES, DRAWING REASONABLE INFERENCES WHERE YOU FIND THEM APPROPRIATE FROM THE FACTS AND CIRCUMSTANCES IN EVIDENCE.

IF YOU FIND FOR THE PLAINTIFF, SHE IS ENTITLED TO RECOVER AN AMOUNT THAT WILL FAIRLY COMPENSATE HER FOR ANY ACCRUED DAMAGES, THAT IS, DAMAGES THAT SHE HAS SUFFERED TO DATE.

IF YOU ALSO FIND THAT THE PLAINTIFF IS REASONABLY CERTAIN TO SUFFER DAMAGES IN THE FUTURE FROM HER INJURIES, THEN YOU SHOULD AWARD HER THE AMOUNT YOU BELIEVE WOULD FAIRLY COMPENSATE HER FOR SUCH FUTURE DAMAGES. AN AWARD OF FUTURE DAMAGES, HOWEVER, NECESSARILY REQUIRES THAT PAYMENT BE MADE NOW FOR A LOSS THAT PLAINTIFF WILL NOT ACTUALLY SUFFER UNTIL SOME FUTURE DATE. THUS, IF YOU SHOULD FIND THAT THE PLAINTIFF IS ENTITLED TO FUTURE DAMAGES, INCLUDING FUTURE EARNINGS, THEN YOU MUST DETERMINE THE PRESENT WORTH IN DOLLARS OF SUCH FUTURE DAMAGES.

ACCORDINGLY, IF YOU AWARD DAMAGES FOR LOSS OF FUTURE EARNINGS, YOU MUST CONSIDER TWO PARTICULAR FACTORS:

1. YOU SHOULD REDUCE ANY AWARD BY THE AMOUNT OF THE EXPENSES THAT THE PLAINTIFF WOULD HAVE INCURRED IN MAKING THOSE EARNINGS.

2. IF YOU MAKE AN AWARD FOR FUTURE LOSS OF EARNINGS, YOU MUST REDUCE IT TO PRESENT VALUE BY CONSIDERING THE INTEREST THAT THE PLAINTIFF COULD EARN ON THE AMOUNT OF THE AWARD IF SHE MADE A RELATIVELY RISK-FREE INVESTMENT. THE REASON WHY YOU MUST MAKE THIS REDUCTION IS BECAUSE AN AWARD OF AN AMOUNT REPRESENTING FUTURE LOSS OF EARNINGS IS MORE VALUABLE TO THE PLAINTIFF IF SHE RECEIVES IT TODAY THAN IF SHE RECEIVED IT IN THE FUTURE, WHEN SHE WOULD OTHERWISE HAVE EARNED IT. IT IS MORE VALUABLE BECAUSE THE PLAINTIFF CAN EARN INTEREST ON IT FOR THE PERIOD OF TIME BETWEEN THE DATE OF THE AWARD AND THE DATE SHE WOULD HAVE EARNED THE MONEY. THUS, YOU SHOULD ADJUST THE AMOUNT OF ANY AWARD FOR FUTURE LOSS OF EARNINGS BY THE AMOUNT OF INTEREST THAT THE PLAINTIFF CAN EARN ON THAT AMOUNT IN THE FUTURE.

IF YOU MAKE ANY AWARD FOR FUTURE MEDICAL EXPENSES, YOU SHOULD ADJUST OR DISCOUNT THE AWARD TO PRESENT VALUE IN THE SAME MANNER AS WITH LOSS OF FUTURE EARNINGS. HOWEVER, YOU MUST NOT MAKE ANY ADJUSTMENT TO PRESENT VALUE FOR ANY DAMAGES YOU MAY AWARD FOR FUTURE PAIN AND SUFFERING OR FUTURE MENTAL ANGUISH.

ELEMENTS OF COMPENSATORY DAMAGES

IN DECIDING WHETHER PLAINTIFF IS ENTITLED TO DAMAGES WITH RESPECT TO HER CLAIMS UNDER 42 U.S.C. §1983, YOU SHOULD CONSIDER THE FOLLOWING ELEMENTS OF DAMAGES, TO THE EXTENT THAT YOU FIND THEM TO HAVE BEEN PROVED BY A PREPONDERANCE OF THE EVIDENCE.

LOST EARNINGS/EARNING CAPACITY

ANY EARNINGS AND BENEFITS LOST AND ANY LOSS OF ABILITY TO EARN MONEY SUSTAINED IN THE PAST AND ANY SUCH LOSS IN THE FUTURE.

INJURY/PAIN/DISABILITY/LOSS OF CAPACITY FOR ENJOYMENT OF LIFE

YOU MAY AWARD DAMAGES FOR ANY BODILY INJURY THAT THE PLAINTIFF SUSTAINED AND ANY PAIN AND SUFFERING, DISABILITY, MENTAL ANGUISH, AND/OR LOSS OF CAPACITY FOR ENJOYMENT OF LIFE THAT THE PLAINTIFF EXPERIENCED IN THE PAST, OR WILL EXPERIENCE IN THE FUTURE, AS A RESULT OF THE BODILY INJURY. NO EVIDENCE OF THE VALUE OF INTANGIBLE THINGS, SUCH AS MENTAL OR PHYSICAL PAIN AND SUFFERING, HAS BEEN OR NEED BE INTRODUCED. YOU ARE NOT TRYING TO DETERMINE VALUE, BUT AN AMOUNT THAT WILL FAIRLY COMPENSATE THE PLAINTIFF FOR THE DAMAGES SHE HAS SUFFERED. THERE IS NO EXACT STANDARD FOR FIXING THE COMPENSATION TO BE AWARDED FOR THESE ELEMENTS OF DAMAGE. ANY AWARD THAT YOU MAKE SHOULD BE FAIR IN THE LIGHT OF THE EVIDENCE.

AGGRAVATION OR ACTIVATION OF DISEASE OR DEFECT

YOU MAY AWARD DAMAGES FOR AGGRAVATION OF AN EXISTING DISEASE OR PHYSICAL DEFECT, OR ACTIVATION OF ANY SUCH LATENT CONDITION, RESULTING FROM PHYSICAL INJURY TO THE PLAINTIFF. IF YOU FIND THAT THERE WAS SUCH AN AGGRAVATION, YOU SHOULD DETERMINE, IF YOU CAN, WHAT PORTION OF THE PLAINTIFF'S CONDITION RESULTED FROM THE AGGRAVATION, AND MAKE ALLOWANCE IN YOUR VERDICT ONLY FOR THE AGGRAVATION.

MEDICAL EXPENSES

YOU MAY AWARD THE REASONABLE VALUE OF MEDICAL CARE AND TREATMENT THAT YOU DETERMINE THAT THE PLAINTIFF WILL REQUIRE BECAUSE OF INJURIES THAT YOU FIND WERE CAUSED BY THE DEFENDANT'S OR DEFENDANTS' WRONGFUL CONDUCT.

MITIGATION OF COMPENSATORY DAMAGES

A PERSON WHO CLAIMS DAMAGES RESULTING FROM THE WRONGFUL ACT OF ANOTHER HAS A DUTY UNDER THE LAW TO USE REASONABLE DILIGENCE TO MITIGATE — TO AVOID OR MINIMIZE — THOSE DAMAGES. THUS, IF YOU FIND THE DEFENDANT IS LIABLE AND THE PLAINTIFF HAS SUFFERED COMPENSATORY DAMAGES, THE PLAINTIFF MAY NOT RECOVER FOR ANY ITEM OF DAMAGE WHICH SHE COULD HAVE AVOIDED THROUGH REASONABLE EFFORT. IF YOU FIND BY A PREPONDERANCE OF THE EVIDENCE THAT THE PLAINTIFF UNREASONABLY FAILED TO TAKE ADVANTAGE OF AN OPPORTUNITY TO LESSEN HER DAMAGES, YOU SHOULD DENY HER RECOVERY FOR THOSE DAMAGES WHICH SHE WOULD HAVE AVOIDED HAD SHE TAKEN ADVANTAGE OF THE OPPORTUNITY.

YOU ARE THE SOLE JUDGE OF WHETHER THE PLAINTIFF ACTED REASONABLY IN AVOIDING OR MINIMIZING HER DAMAGES. AN INJURED PLAINTIFF MAY NOT SIT IDLY BY WHEN PRESENTED WITH AN OPPORTUNITY TO REDUCE HER DAMAGES. HOWEVER, SHE IS NOT REQUIRED TO EXERCISE UNREASONABLE EFFORTS OR INCUR UNREASONABLE EXPENSES IN MITIGATING THE DAMAGES. THE DEFENDANT HAS THE BURDEN OF PROVING THE DAMAGES THAT THE PLAINTIFF COULD HAVE MITIGATED. IN DECIDING WHETHER TO REDUCE THE PLAINTIFF'S DAMAGES BECAUSE OF HER FAILURE TO MITIGATE, YOU MUST WEIGH ALL THE EVIDENCE IN LIGHT OF THE PARTICULAR CIRCUMSTANCES OF THE CASE, USING SOUND DISCRETION IN DECIDING WHETHER THE DEFENDANT HAS SATISFIED HIS BURDEN OF PROVING THAT THE PLAINTIFF'S CONDUCT WAS NOT REASONABLE.

FOR INSTANCE, IN CONSIDERING WHETHER PLAINTIFF FAILED TO MITIGATE HER DAMAGES YOU SHOULD CONSIDER WHETHER THE DEFENDANT(S) HAS SHOWN THAT THERE WERE SUBSTANTIALLY EQUIVALENT EMPLOYMENT POSITIONS AVAILABLE AND THAT PLAINTIFF FAILED TO USE REASONABLE DILIGENCE IN SEEKING THOSE POSITIONS. "SUBSTANTIALLY EQUIVALENT EMPLOYMENT" MEANS A JOB THAT HAS VIRTUALLY IDENTICAL PROMOTIONAL OPPORTUNITIES, COMPENSATION, JOB RESPONSIBILITIES, WORKING CONDITIONS, AND STATUS AS THE JOB THAT PLAINTIFF LOST. PLAINTIFF DOES NOT HAVE TO ACCEPT A JOB THAT IS DISSIMILAR TO THE ONE SHE LOST, ONE THAT WOULD BE A DEMOTION, OR ONE THAT WOULD BE DEMEANING. THE REASONABLENESS OF PLAINTIFF'S DILIGENCE SHOULD BE EVALUATED IN LIGHT OF THE INDIVIDUAL CHARACTERISTICS OF PLAINTIFF AND THE JOB MARKET.

PUNITIVE DAMAGES

IF YOU FIND THAT ONE OR MORE OF THE DEFENDANTS ARE LIABLE FOR THE PLAINTIFF'S INJURIES, YOU MUST AWARD THE PLAINTIFF THE COMPENSATORY DAMAGES THAT SHE HAS PROVEN. YOU ALSO MAY AWARD PUNITIVE DAMAGES, IF THE PLAINTIFF HAS PROVED THAT THE DEFENDANT(S) ACTED WITH MALICE OR WILLFULNESS OR WITH CALLOUS AND RECKLESS INDIFFERENCE TO THE SAFETY OR RIGHTS OF OTHERS. ONE ACTS WILLFULLY OR WITH RECKLESS INDIFFERENCE TO THE RIGHTS OF OTHERS WHEN HE OR SHE ACTS IN DISREGARD OF A HIGH AND EXCESSIVE DEGREE OF DANGER ABOUT WHICH HE OR SHE KNOWS OR WHICH WOULD BE APPARENT TO A REASONABLE PERSON IN HIS CONDITION.

IF YOU DETERMINE THAT THE DEFENDANT'S OR DEFENDANTS' CONDUCT WAS SO SHOCKING AND OFFENSIVE AS TO JUSTIFY AN AWARD OF PUNITIVE DAMAGES, YOU MAY EXERCISE YOUR DISCRETION TO AWARD THOSE DAMAGES. IN MAKING ANY AWARD OF PUNITIVE DAMAGES, YOU SHOULD CONSIDER THAT THE PURPOSE OF PUNITIVE DAMAGES IS TO PUNISH A DEFENDANT FOR SHOCKING CONDUCT, AND TO DETER THE DEFENDANT AND OTHERS FROM ENGAGING IN SIMILAR CONDUCT IN THE FUTURE. THE LAW DOES NOT REQUIRE YOU TO AWARD PUNITIVE DAMAGES, HOWEVER, IF YOU DECIDE TO AWARD PUNITIVE DAMAGES, YOU MUST USE SOUND REASON IN SETTING THE AMOUNT OF THE DAMAGES. THE AMOUNT OF AN AWARD OF PUNITIVE DAMAGES MUST NOT REFLECT BIAS, PREJUDICE, OR SYMPATHY TOWARD ANY PARTY. HOWEVER, THE AMOUNT CAN BE AS LARGE AS YOU BELIEVE NECESSARY TO FULFILL THE PURPOSES OF PUNITIVE DAMAGES. YOU MAY CONSIDER THE FINANCIAL RESOURCES OF THE DEFENDANT(S) IN FIXING THE AMOUNT OF PUNITIVE DAMAGES AND YOU MAY IMPOSE PUNITIVE DAMAGES AGAINST ONE OR MORE OF THE DEFENDANTS, AND NOT OTHERS, OR AGAINST MORE THAN ONE DEFENDANT IN DIFFERENT AMOUNTS.

MULTIPLE CLAIMS AND MULTIPLE DEFENDANTS

YOU MUST NOT AWARD COMPENSATORY DAMAGES MORE THAN ONCE FOR THE SAME INJURY. FOR EXAMPLE, IF THE PLAINTIFF PREVAILS ON TWO CLAIMS AND ESTABLISHES A DOLLAR AMOUNT FOR HER INJURIES, YOU MUST NOT AWARD HER ANY ADDITIONAL COMPENSATORY DAMAGES ON EACH CLAIM. THE PLAINTIFF IS ONLY ENTITLED TO BE MADE WHOLE ONCE, AND MAY NOT RECOVER MORE THAN SHE HAS LOST. OF COURSE, IF DIFFERENT INJURIES ARE ATTRIBUTED TO THE SEPARATE CLAIMS, THEN YOU MUST COMPENSATE THE PLAINTIFF FULLY FOR ALL OF HER INJURIES. WITH RESPECT TO PUNITIVE DAMAGES, YOU MAY MAKE SEPARATE AWARDS ON EACH CLAIM THAT PLAINTIFF HAS ESTABLISHED.

YOU MAY IMPOSE DAMAGES ON A CLAIM SOLELY UPON THE DEFENDANT OR DEFENDANTS THAT YOU FIND ARE LIABLE ON THAT CLAIM. ALTHOUGH THERE ARE A NUMBER OF DEFENDANTS IN THIS CASE, IT DOES NOT NECESSARILY FOLLOW THAT IF ONE IS LIABLE, ALL OR ANY OF THE OTHERS ALSO ARE LIABLE. EACH DEFENDANT IS ENTITLED TO FAIR, SEPARATE AND INDIVIDUAL CONSIDERATION OF HIS CASE WITHOUT REGARD TO YOUR DECISION AS TO THE OTHER DEFENDANTS. IF YOU FIND THAT ONLY ONE DEFENDANT IS RESPONSIBLE FOR A PARTICULAR INJURY, THEN YOU MUST AWARD DAMAGES FOR THAT INJURY ONLY AGAINST THAT DEFENDANT.

YOU MAY FIND THAT MORE THAN ONE DEFENDANT IS LIABLE FOR A PARTICULAR INJURY. IF SO, THE PLAINTIFF IS NOT REQUIRED TO ESTABLISH HOW MUCH OF THE INJURY WAS CAUSED BY EACH PARTICULAR DEFENDANT WHOM YOU FIND LIABLE. THUS, IF YOU CONCLUDE THAT THE DEFENDANTS YOU FIND LIABLE ACTED JOINTLY, THEN YOU MAY TREAT THEM JOINTLY FOR PURPOSES OF CALCULATING DAMAGES. IF YOU DECIDE THAT TWO OR MORE OF THE DEFENDANTS ARE JOINTLY LIABLE ON A PARTICULAR CLAIM, THEN YOU MAY SIMPLY DETERMINE THE OVERALL AMOUNT OF DAMAGES FOR WHICH THEY ARE LIABLE, WITHOUT DETERMINING INDIVIDUAL PERCENTAGES OF LIABILITY.

CLOSING INSTRUCTIONS

IT IS YOUR SWORN DUTY AS JURORS TO DISCUSS THE CASE WITH EACH OTHER IN AN EFFORT TO REACH AGREEMENT IF YOU CAN DO SO. EACH OF YOU MUST DECIDE THE CASE FOR YOURSELF, BUT ONLY AFTER FULL CONSIDERATION OF THE EVIDENCE WITH THE OTHER MEMBERS OF THE JURY. WHILE YOU ARE DISCUSSING THE CASE, DO NOT HESITATE TO RE-EXAMINE YOUR OWN OPINION AND CHANGE YOUR MIND IF YOU BECOME CONVINCED THAT YOU ARE WRONG. HOWEVER, DO NOT GIVE UP YOUR HONEST BELIEFS SOLELY BECAUSE THE OTHERS THINK DIFFERENTLY, OR MERELY TO FINISH THE CASE.

REMEMBER THAT IN A VERY REAL WAY YOU ARE THE JUDGES — THE JUDGES OF THE FACTS. YOUR ONLY INTEREST IS TO SEEK THE TRUTH FROM THE EVIDENCE IN THE CASE.

I HAVE PREPARED A SPECIAL VERDICT FORM FOR YOUR CONVENIENCE AND TO AID YOU IN REACHING A UNANIMOUS DECISION. YOU WILL TAKE THE FORM WITH YOU TO THE JURY ROOM. THE VERDICT MUST REPRESENT THE CONSIDERED JUDGMENT OF EACH JUROR. YOUR VERDICT MUST BE UNANIMOUS ON EACH AND EVERY INTERROGATORY YOU ARE CALLED ON TO DECIDE.

[READ JURY VERDICT FORM]

WHEN YOU RETIRE TO THE JURY ROOM TO DELIBERATE ON YOUR VERDICT, YOU MAY TAKE THESE INSTRUCTIONS AND THE EXHIBITS THAT THE COURT HAS ADMITTED INTO EVIDENCE WITH YOU. THEN SELECT YOUR FOREPERSON AND BEGIN YOUR DELIBERATIONS. DURING THOSE DELIBERATIONS, YOU MUST NOT COMMUNICATE WITH OR PROVIDE ANY INFORMATION TO ANYONE BY ANY MEANS ABOUT THIS CASE. YOU MAY NOT USE ANY ELECTRONIC DEVICE OR MEDIA, SUCH AS A TELEPHONE, CELL PHONE, SMART PHONE, IPHONE, BLACKBERRY OR COMPUTER; THE INTERNET, ANY INTERNET SERVICE, OR ANY TEXT OR INSTANT MESSAGING SERVICE; OR ANY INTERNET CHAT ROOM, BLOG, OR WEBSITE SUCH AS FACEBOOK, MY SPACE, LINKEDIN, YOUTUBE OR TWITTER, TO COMMUNICATE TO ANYONE ANY INFORMATION ABOUT THIS CASE OR TO CONDUCT ANY RESEARCH ABOUT THIS CASE UNTIL I ACCEPT YOUR VERDICT.

IF YOU RECESS DURING YOUR DELIBERATIONS, FOLLOW ALL OF THE INSTRUCTIONS THAT THE COURT HAS GIVEN YOU ABOUT YOUR CONDUCT DURING THE TRIAL. AFTER YOU HAVE REACHED YOUR UNANIMOUS VERDICT, YOUR FOREPERSON IS TO FILL IN ON THE FORM YOUR ANSWERS TO THE QUESTIONS. DO NOT REVEAL YOUR ANSWERS UNTIL SUCH TIME AS YOU ARE DISCHARGED, UNLESS OTHERWISE DIRECTED BY ME. YOU MUST NEVER DISCLOSE TO ANYONE, NOT EVEN TO ME, ANY NUMERICAL DIVISION ON ANY QUESTION.

IF YOU NEED TO COMMUNICATE WITH ME DURING YOUR DELIBERATIONS, THE FOREPERSON SHOULD PREPARE A WRITTEN MESSAGE OR QUESTION AND GIVE IT TO THE MARSHAL, WHO WILL BRING IT TO ME. I WILL EITHER REPLY IN WRITING OR BRING YOU BACK INTO THE COURT TO RESPOND TO YOUR MESSAGE. I WILL ALWAYS FIRST DISCLOSE TO THE ATTORNEYS AND THE PARTIES YOUR MESSAGE AND MY RESPONSE BEFORE I ANSWER YOUR QUESTION.

AFTER YOU HAVE REACHED A VERDICT, YOU ARE NOT REQUIRED TO TALK WITH ANYONE ABOUT THE CASE UNLESS THE COURT ORDERS OTHERWISE. YOU MAY NOW RETIRE TO THE JURY ROOM TO CONDUCT YOUR DELIBERATIONS.