12-3344-cv

L.A. Printex Indus., Inc. v. Pretty Girl of Ca., Inc., et al.

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED

ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE

PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A

DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN

ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST

SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals

2 for the Second Circuit, held at the Thurgood Marshall United

3 States Courthouse, 40 Foley Square, in the City of New York,

on the 26th 4 day of November, two thousand thirteen.

5

6 PRESENT: AMALYA L. KEARSE,

7 DENNIS JACOBS,

8 CHESTER J. STRAUB,

9 Circuit Judges.

10

11 - - - - - - - - - - - - - - - - - - - -X

12 L.A. PRINTEX INDUSTRIES, INC., a

13 California Corporation,

14 Plaintiff-Appellee,

15

16 -v.- 12-3344

17

18 Does 1-10,

19 Defendants,

20

21 and

22

23 PRETTY GIRL OF CALIFORNIA, INC., a New

24 York Corporation, individually and

25 doing business as Pretty Girl, PRETTY

26 GIRL, INC., a New York Corporation,

27 ALBERT NIGRI, an individual,

28 Defendants-Appellants.

29 - - - - - - - - - - - - - - - - - - - -X

1
1 FOR APPELLANT: DANIELLE DERMESROPIAN (Vano I.

2 Haroutunian, on the brief)

3 Ballon Stoll Bader & Nadler,

4 P.C., New York, New York.

5

6 FOR APPELLEES: STEPHEN DONIGER, Doniger /

7 Burroughs, APC, Culver City,

8 California, (Kevin C. Taylor,

9 Schnader Harrison Segal & Lewis

10 LLP, New York, New York, on the

11 brief).

12

13 Appeal from a judgment of the United States District

14 Court for the Southern District of New York (Forrest, J.).

15

16 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

17 AND DECREED that the judgment of the district court be

18 AFFIRMED. 

19

20 Pretty Girl of California, Inc. and Pretty Girl, Inc.

21 (collectively, “Pretty Girl”) and their owner, Albert Nigri,

22 appeal from the judgment of the United States District Court

23 for the Southern District of New York (Forrest, J.), holding

24 them liable for willful copyright infringement, and jointly

25 and severally liable for $40,000 in damages to L.A. Printex

26 Industries, Inc. (“L.A. Printex”). On appeal, Pretty Girl

27 and Nigri challenge the denial of their motions for judgment

28 as a matter of law (“JMOL”) and for remittitur of damages,

29 arguing: (1) there was insufficient evidence to support a

30 finding of willful infringement; (2) the $40,000 damage

31 award “shocks the judicial conscience” and must be reduced;

32 and (3) L.A. Printex’s claim is barred by laches. We assume

33 the parties’ familiarity with the underlying facts, the

34 procedural history, and the issues presented for review. 

35

36 1. The district court’s ruling on a post-verdict motion

37 for JMOL under Rule 50(b) is reviewed de novo. Runner v.

38 N.Y. Stock Exch., Inc., 568 F.3d 383, 386 (2d Cir. 2009). A

39 Rule 50 motion may be granted only if, “after viewing the

40 evidence in the light most favorable to the non-moving party

41 and drawing all reasonable inferences in favor of the

42 non-moving party, [the court] finds that there is

43 insufficient evidence to support the verdict.” Fabri v.

44 United Techs. Int'l, Inc., 387 F.3d 109, 119 (2d Cir. 2004).

2
1 When a plaintiff can demonstrate, either directly or

2 through circumstantial evidence, that the defendant had

3 knowledge that his actions constituted infringement, or

4 recklessly disregarded such possibility, enhanced statutory

5 damages for willful copyright infringement under 17 U.S.C. §

6 504(c)(2) may be awarded. See Bryant v. Media Right Prods.,

7 Inc., 603 F.3d 135, 143 (2d Cir. 2010) (reciting the

8 standard for proving willful infringement); Isl. Software &

9 Computer Serv. v. Microsoft Corp., 413 F.3d 257, 264 (2d

10 Cir. 2005) (noting that a plaintiff can prove willfulness

11 “by proffering circumstantial evidence that gives rise to an

12 inference of willful conduct”). L.A. Printex, a California13 based company, presented evidence that all samples of its

14 designs contained copyright notifications, that the design

15 on the infringing skirt was identical to those on the

16 samples, and that Pretty Girl and Nigri had close

17 connections to another “Pretty Girl” company in California,

18 owned by Nigri’s father, which likely manufactured the

19 skirt. The garment bore the label “PGNY,” easily permitting

20 the jury to infer that the garment was designed and

21 manufactured at the behest of the New York-based Pretty Girl

22 company. This evidence is sufficient to support a finding

23 of knowledge or, at least, reckless disregard of the

24 possibility of infringement.

25

26 Although Nigri denied any knowledge of the origin of

27 the design and the skirt’s manufacture, the jury was free to

28 disregard his testimony. See Fabri v. United Techs. Int’l,

29 Inc., 387 F.3d 109, 119 (2d Cir. 2004) (“The district court

30 cannot set aside the jury’s credibility findings and cannot

31 find for the movant based on evidence the jury was entitled

32 to discredit. We apply the same standard.” (internal

33 citation omitted)). 

34

35 2. “The standard for appellate review of damage awards ...

36 is whether the award is so high as to shock the judicial

37 conscience and constitute a denial of justice.” O'Neill v.

38 Krzeminski, 839 F.2d 9, 13 (2d Cir. 1988) (internal

39 quotation marks omitted). Because the jury found that

40 Pretty Girl and Nigri had willfully infringed the L.A.

41 Printex copyright, the Copyright Act permitted the jury to

42 award up to $150,000 in damages “in its discretion.” 17

43 U.S.C. § 504(c)(2); Feltner v. Columbia Pictures Television,

44 Inc., 523 U.S. 340 (1998). We apply a deferential standard

3
1 in reviewing an award of statutory damages. Yurman Design,

2 Inc. v. PAJ, Inc., 262 F.3d 101, 113 (2d Cir. 2001). 

3

4 The damages award of $40,000 is well below the

5 statutory maximum. Pretty Girl and Nigri argue that the

6 award is disproportionate to the profits generated by sales

7 of the infringing garment. But the “statutory award is also

8 meant to discourage wrongful conduct ...[, which] is why the

9 statute permits ... additional damages where an infringement

10 is willful.” Id. at 114 (internal quotation marks omitted)

11 (upholding a $275,000 damages award when only $19,000 in

12 infringement-related profits were generated). The award

13 does not shock the conscience of the Court.

14

15 3. “Whether laches bars an action in a given case ... is a

16 question primarily addressed to the discretion of the trial

17 court.” Burnett v. N.Y. Cent. R.R. Co., 380 U.S. 424, 435

18 (1965) (internal quotation marks omitted). An abuse of

19 discretion could consist of an erroneous view of the law or

20 a clearly erroneous assessment of the evidence, see, e.g.,

21 Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405 (1990),

22 or a decision that, while not necessarily the product of a

23 legal error or a clearly erroneous factual finding, cannot

24 be located within the range of permissible decisions, see,

25 e.g., Sims v. Blot, 534 F.3d 117, 132 (2d Cir. 2008); Zervos

26 v. Verizon New York, Inc., 252 F.3d 163, 169 (2d Cir. 2001). 

27 We see no abuse of discretion here. 

28

29 To prevail on a laches defense, the defendant must show

30 that: “(1) the plaintiff knew of the defendant’s misconduct;

31 (2) the plaintiff inexcusably delayed in taking action; and

32 (3) the defendant was prejudiced by the delay.” Ikelionwu

33 v. United States, 150 F.3d 233, 237 (2d Cir. 1998). Pretty

34 Girl and Nigri argue that they became unable to timely

35 produce sales reports because of L.A. Printex’s delay in

36 bringing the action; but the record demonstrates that they

37 were able to generate reports - and that, in fact, they did

38 so. See L.A. Printex Indus., Inc. v. Pretty Girl of Ca.,

39 Inc., et al., No. 09-cv-4206 (S.D.N.Y. April 13, 2011, ECF

40 No. 28). In denying defendants’ motion to reopen discovery,

41 the district court found defendants’ argument

42 “unsatisfactory to explain why the Sales Report was not

43 produced” until after discovery concluded. Pretty Girl and

4
1 Nigri suffered no prejudice as a result of delay, and their

2 laches defense therefore fails. 

3

4 For the foregoing reasons, and finding no merit in

5 Pretty Girl’s and Nigri’s other arguments, we hereby AFFIRM

6 the judgment of the district court.

7

8 FOR THE COURT:

9 CATHERINE O’HAGAN WOLFE, CLERK

10

5