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

**R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT**  **. C**  **ITATION TO A SUMMARY ORDER FILED**
**ON OR AFTER J** **ANUARY 1,**  **2007, IS PERMITTED AND IS GOVERNED BY**  **F EDERAL**  **R ULE OF**  **A PPELLATE**  **P ROCEDURE**  **32.1 AND THIS COURT**  **’ S**  **L OCAL**  **R ULE**  **32.1.1. W**  **HEN CITING A SUMMARY ORDER IN A**
**DOCUMENT FILED WITH THIS COURT ,**  **A PARTY MUST CITE EITHER THE F** **EDERAL A** **PPENDIX 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 .** 
**At a stated term of the United States Court of Appeals** 1 **for the Second Circuit, held at the Thurgood Marshall United** 2 **States Courthouse, 40 Foley Square, in the City of New York,** 3 **on the 26 th** **day of November, two thousand thirteen.** 4 5 **PRESENT: AMALYA L. KEARSE,** 6 **DENNIS JACOBS,** 7 **CHESTER J. STRAUB,** 8 **Circuit Judges**

**.** 9 10 - - - - - - - - - - - - - - - - - - - -X 11 **L.A. PRINTEX INDUSTRIES, INC., a** 12 **California Corporation**
, 13 **Plaintiff-Appellee ,**  14 15 **-v.- 12-3344** 16 17 **Does 1-10,** 18 **Defendants ,**  19 20 **and** 21 22 **PRETTY GIRL OF CALIFORNIA, INC., a New** 23 **York Corporation, individually and** 24 **doing business as Pretty Girl, PRETTY** 25 **GIRL, INC., a New York Corporation,** 26 **ALBERT NIGRI, an individual,** 27 **Defendants-Appellants**

**.** 28 - - - - - - - - - - - - - - - - - - - -X 29

1**FOR APPELLANT:** DANIELLE DERMESROPIAN (Vano I. 1 Haroutunian, on the brief ) 2 Ballon Stoll Bader & Nadler, 3 P.C., New York, New York. 4 5 **FOR APPELLEES:** STEPHEN DONIGER, Doniger / 6 Burroughs, APC, Culver City, 7 California, (Kevin C. Taylor, 8 Schnader Harrison Segal & Lewis 9 LLP, New York, New York, on the 10 brief ). 11 12 Appeal from a judgment of the United States District 13 Court for the Southern District of New York (Forrest, J. ). 14 15 **UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED** 16 **AND DECREED**that the judgment of the district court be 17
**AFFIRMED**

. 18 19 Pretty Girl of California, Inc. and Pretty Girl, Inc. 20 (collectively, “Pretty Girl”) and their owner, Albert Nigri, 21 appeal from the judgment of the United States District Court 22 for the Southern District of New York (Forrest, J. ), holding 23 them liable for willful copyright infringement, and jointly 24 and severally liable for $40,000 in damages to L.A. Printex 25 Industries, Inc. (“L.A. Printex”) . On appeal, Pretty Girl 26 and Nigri challenge the denial of their motions for judgment 27 as a matter of law (“JMOL”) and for remittitur of damages, 28 arguing: (1) there was insufficient evidence to support a 29 finding of willful infringement; (2) the $40,000 damage 30 award “shocks the judicial conscience” and must be reduced; 31 and (3) L.A. Printex’s claim is barred by laches. We assume 32 the parties’ familiarity with the underlying facts, the 33 procedural history, and the issues presented for review. 34 35 **1.** The district court’s ruling on a post-verdict motion 36 for JMOL under Rule 50(b) is reviewed de novo . Runner v. 37 N.Y. Stock Exch., Inc. , 568 F.3d 383, 386 (2d Cir. 2009). A 38 Rule 50 motion may be granted only if, “after viewing the 39 evidence in the light most favorable to the non-moving party 40 and drawing all reasonable inferences in favor of the 41 non-moving party, [the court] finds that there is 42 insufficient evidence to support the verdict.” Fabri v. 43 United Techs. Int'l, Inc. , 387 F.3d 109, 119 (2d Cir. 2004). 44

2When a plaintiff can demonstrate, either directly or 1 through circumstantial evidence, that the defendant had 2 knowledge that his actions constituted infringement, or 3 recklessly disregarded such possibility, enhanced statutory 4 damages for willful copyright infringement under 17 U.S.C. § 5 504(c)(2) may be awarded. SeeBryant v. Media Right Prods., 6 Inc. , 603 F.3d 135, 143 (2d Cir. 2010) (reciting the 7 standard for proving willful infringement); Isl. Software & 8 Computer Serv. v. Microsoft Corp. , 413 F.3d 257, 264 (2d 9 Cir. 2005) (noting that a plaintiff can prove willfulness 10 “by proffering circumstantial evidence that gives rise to an 11 inference of willful conduct”). L.A. Printex, a California12 based company, presented evidence that all samples of its 13 designs contained copyright notifications, that the design 14 on the infringing skirt was identical to those on the 15 samples, and that Pretty Girl and Nigri had close 16 connections to another “Pretty Girl” company in California, 17 owned by Nigri’s father, which likely manufactured the 18 skirt. The garment bore the label “PGNY,” easily permitting 19 the jury to infer that the garment was designed and 20 manufactured at the behest of the New York-based Pretty Girl 21 company. This evidence is sufficient to support a finding 22 of knowledge or, at least, reckless disregard of the 23 possibility of infringement. 24 25 Although Nigri denied any knowledge of the origin of 26 the design and the skirt’s manufacture, the jury was free to 27 disregard his testimony. SeeFabri v. United Techs. Int’l, 28 Inc. , 387 F.3d 109, 119 (2d Cir. 2004) (“The district court 29 cannot set aside the jury’s credibility findings and cannot 30 find for the movant based on evidence the jury was entitled 31 to discredit. We apply the same standard.” (internal 32 citation omitted)). 33 34 **2.** “The standard for appellate review of damage awards ... 35 is whether the award is so high as to shock the judicial 36 conscience and constitute a denial of justice.” O'Neill v. 37 Krzeminski , 839 F.2d 9, 13 (2d Cir. 1988) (internal 38 quotation marks omitted). Because the jury found that 39 Pretty Girl and Nigri had willfully infringed the L.A. 40 Printex copyright, the Copyright Act permitted the jury to 41 award up to $150,000 in damages “in its discretion.” 17 42 U.S.C. § 504(c)(2); Feltner v. Columbia Pictures Television, 43 Inc. , 523 U.S. 340 (1998). We apply a deferential standard 44

3in reviewing an award of statutory damages. Yurman Design, 1 Inc. v. PAJ, Inc. , 262 F.3d 101, 113 (2d Cir. 2001). 2 3 The damages award of $40,000 is well below the 4 statutory maximum. Pretty Girl and Nigri argue that the 5 award is disproportionate to the profits generated by sales 6 of the infringing garment. But the “statutory award is also 7 meant to discourage wrongful conduct ...[, which] is why the 8 statute permits ... additional damages where an infringement 9 is willful.” Id. at 114 (internal quotation marks omitted) 10 (upholding a $275,000 damages award when only $19,000 in 11 infringement-related profits were generated). The award 12 does not shock the conscience of the Court. 13 14 **3.** “Whether laches bars an action in a given case ... is a 15 question primarily addressed to the discretion of the trial 16 court.” Burnett v. N.Y. Cent. R.R. Co. , 380 U.S. 424, 435 17 (1965) (internal quotation marks omitted). An abuse of 18 discretion could consist of an erroneous view of the law or 19 a clearly erroneous assessment of the evidence, see , e.g. , 20 Cooter & Gell v. Hartmarx Corp. , 496 U.S. 384, 405 (1990), 21 or a decision that, while not necessarily the product of a 22 legal error or a clearly erroneous factual finding, cannot 23 be located within the range of permissible decisions, see
, 24
e.g. , Sims v. Blot , 534 F.3d 117, 132 (2d Cir. 2008); Zervos 25 v. Verizon New York, Inc. , 252 F.3d 163, 169 (2d Cir. 2001). 26 We see no abuse of discretion here. 27 28 To prevail on a laches defense, the defendant must show 29 that: “(1) the plaintiff knew of the defendant’s misconduct; 30 (2) the plaintiff inexcusably delayed in taking action; and 31 (3) the defendant was prejudiced by the delay.” Ikelionwu 32 v. United States , 150 F.3d 233, 237 (2d Cir. 1998). Pretty 33 Girl and Nigri argue that they became unable to timely 34 produce sales reports because of L.A. Printex’s delay in 35 bringing the action; but the record demonstrates that they 36 were able to generate reports - and that, in fact, they did 37

so. SeeL.A. Printex Indus., Inc. v. Pretty Girl of Ca., 38 Inc., et al. , No. 09-cv-4206 (S.D.N.Y. April 13, 2011, ECF 39 No. 28). In denying defendants’ motion to reopen discovery, 40 the district court found defendants’ argument 41 “unsatisfactory to explain why the Sales Report was not 42 produced” until after discovery concluded. Pretty Girl and 43

4Nigri suffered no prejudice as a result of delay, and their 1 laches defense therefore fails. 2 3 For the foregoing reasons, and finding no merit in 4 Pretty Girl’s and Nigri’s other arguments, we hereby **AFFIRM** 5 the judgment of the district court. 6 7 FOR THE COURT: 8 CATHERINE O’HAGAN WOLFE, CLERK 9 10

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