V.

DIVISION POINT MODELS, INC., et a!.,

Defendants.

CECCHI, District Judge.

I. INTRODUCTION

This matter comes before the Court by way of Defendant Uncle Dave’s Brass Model

Trains’ (“Defendant”) motion for reconsideration of the Court’s March 21, 2017 Order denyingDefendant’s motion for attorneys’ fees and costs (“Order”). (ECF No. 152 (“Motion for

Reconsideration”)). For the reasons that follow, Defendant’s Motion for Reconsideration isdenied)II. BACKGROUND

On February 2, 2011, PlaintiffMorning Sun Books, Inc. (“Plaintiff’) brought this copyright

and trademark infringement action against Defendant as well as Division Point Models, Inc., K+CJohnson Ltd., Kenneth Johnson, and Jack Vansworth. (ECF No. 1). On December 13, 2013,

Defendant moved for summary judgment on all counts of Plaintiffs complaint. (ECF No. 65).On April 8, 2015, before the Court issued a decision on the motion, Plaintiffand Defendant entered

into a settlement agreement, (ECF No. 145-1 (the “Settlement Agreement”)), and on April 9,2015,

1 The Court considers any new arguments not presented by the parties to be waived. See Brenner

v. Local 514, United Bhd. ofCarpenters & Joiners ofAm., 927 F.2d 1283, 1298 (3d Cir. 1991) (“It

is well established that failure to raise an issue in the district court constitutes a waiver of the

argument.”).

OPINION

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equivalent) terminating the lawsuit{.]” (ECF No. 109 at 2). The Stipulation of Dismissal further

provides that “Plaintiff. . . would oppose” Defendant’s motion for attorneys’ fees and costs. (Id.).Plaintiffsubsequently settled with the remaining defendants in this action and on March 7, 2016,

the Court entered an order dismissing the case. (ECF No. 119). On May 9, 2016, Defendant fileda motion for attorneys’ fees and costs. (ECF No. 135).

On March 21, 2017, the Court entered an Order denying Defendant’s motion for attorneys’

fees and costs, finding that Defendant was not a “prevailing party” in this litigation. (ECF No. 151

at 2-3). Moreover, the Court held that even ifthe Court were to find Defendant as the prevailing

party, it would not find an award offees appropriate under the Copyright Act or the Lanham Act

based on the circumstances and history ofthis case. (Id. at 4). On April 15, 2017, Defendant filed

a Motion for Reconsideration. (ECF No. 152).

III. LEGAL STANDARD

The Court will reconsider a prior order only where a different outcome is justified by: (1)

an intervening change in controlling law; (2) the availability of new evidence not previously

available; or (3) the need to correct a clear error of law or prevent manifest injustice. See N. River

Ins. Co. v. CIGNA Reinsurance Co., 52 f.3d 1194, 1218 (3d Cir. 1995). A court commits clear

error oflaw “only ifthe record cannot support the findings that led to [the] ruling.” ABSBrokerage

Servs., LLC v. Penson Fin. Servs., Inc., No. 09-4590, 2010 WL 3257992, at *6 (D.N.J. Aug. 16,

2010) (citing United States v. Grape, 549 F.3d 591, 603-04 (3d Cir. 2008)). “Thus, aparty must.

2
As a preliminary matter, the Court notes that Defendant’s Motion for Reconsideration is

untimely. Defendant filed its motion on April 15, 2017, twenty-five days after the Court’s March21, 2017 decision denying Defendant’s motion for attorneys’ fees and costs, and eleven days after

the time period set forth in Local Rule 7.1(i). (ECF No. 152). Indeed, Defendant concedes thatits Motion for Reconsideration was not filed within 14 days after the Court’s Order. (ECF No.

152-1 at 1). Defendant further “concede[s] that [it] may have erred in believing that

reconsideration was controlled by Rule 59(e), rather than Local Rule 7.1(i).” (ECF No. 158 at 6;

see also Id. at 8 (Defendant admitting that “the failure to file what could easily have been a simplemotion was [its] fault.”)).

Nonetheless, the Court will consider the arguments made in Defendant’s Motion for

Reconsideration.2 For the reasons set forth below, the Court once again finds that Defendant is

not entitled to attorneys’ fees and costs, and will deny Defendant’s Motion for Reconsideration.

Defendant first contends that the Court erroneously applied Buckhannon Board & Care

Home, Inc. v. West Virginia Department ofHealth & Human Resources in its March 21, 2017

Order denying Defendant’s motion for attorneys’ fees and costs. (ECF No. 152-1 at 2). In

Buckhannon, the Supreme Court explained that some statutes permit courts to award attorneys’

fees and costs to “prevailing parties.” 532 U.S. 598, 602 (2001). In determining whether a party

2 Accordingly, Defendant’s application for “(1) Sua Sponte Withdrawal of Order Denying Fee Motion; (2) Treatment of Motion as filed Under Rule 5 9(e); and/or (3) Relief from Time Limit

Under Local Rule 7.1(1),” (ECF No. 158 (“Application for Relief’)), will be denied as moot.

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agreement exist in this matter. (ECF No. 15$ at 7; see also ECF No. 152-1 at 3). Nevertheless,

Defendant avers that it is the prevailing party because Buckhannon only applies to plaintiffs, not

defendants. (See id. at 2-6).

“[T]he rule of Buckhannon applies at the first step of [determining whether a party is

entitled to attorneys’ fees and costs under a federal fee-shifting statute], regardless of whether the

party seeking fees is a plaintiff or a defendant[.]” Mr. L. v. Sloan, 449 F.3d 405, 407 (2d Cir.

2006). “To the extent [D]efendant[] contend[s] that Buckhannon’s holding does not apply to

dismissals obtained by defendants, that argument [was rejected] in Mr. L. v. Sloan. In that case,

th[e] court ruled that Buckhannon’s holding ‘that a prevailing party under federal fee-shifting

statutes is one who has achieved a judicially sanctioned change in the legal relationship among the

parties,’ applies in ‘prevailing defendant’ cases.” Dattner v. Conagra foods, Inc., 458 F.3d 9$,

102 (2d Cir. 2006) (quoting 449 F.3d at 405-06). Accordingly, Defendant’s argument is without

merit.3

The Court finds Defendant’s argument that the Supreme Court held Buckhannon inapplicable to

“prevailing-defendant” cases in CRST Van Expedited, Inc. v. E.E.O.C. without merit. (ECf No.

152-1 at 2-4; see also Id. at 7). In CRST, the Supreme Court held that a defendant may prevail

even where there is no ruling on the merits, see 136 S. Ct. 1642, 1646 (2016), which is entirely

consistent with Buckhannon. See 532 U.S. at 604 (holding that a party may prevail by eitherobtaining a judgment on the merits or a court-approved settlement agreement).

Moreover, the Court notes that the cases cited by Defendant, (ECF No. 152-1 at 4-5), do not

support Defendant’s position that it is a prevailing party, as in each ofthose cases the court entered

an order or judgment dismissing the plaintiffs’ claims with prejudice. Here, the parties entered

into a stipulation ofdismissal, which courts have held does not confer prevailing party status on

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a party has prevailed, which the Court did not do in this matter. See Schffer Pubi ‘g, Ltd. v.

Chronicle Books, LLC, No. 03-962, 2005 WL 1244923, at *2 (E.D. Pa. May 24, 2005) (“In this

Circuit, adjudication of attorneys’ fees in a copyright case requires a. . . process. First, a court

detennines which party has ‘prevailed,’ and then applies a four-factor test, [which considers the

parties’ conduct,] to decide whether the prevailing party should receive any fees at all.”) (emphasis

added) (citing Lieb v. Topstone Indus., 78$ F.2d 151 (3d Cir. 1986)). Therefore, Defendant’s

argument is without merit.

Even if Defendant was a prevailing party in this litigation, the Court still finds that

Defendant is not entitled to attorneys’ fees and costs under the Copyright Act. “An award ofattorney’s fees is within a court’s sound discretion.” Silberstein v. DigitalArt Sols., Inc., No. 02-

$187, 2003 WL 21297291, at *2 (S.D.N.Y. June 4, 2003). “In exercising its discretion under 17

U.S.C. § 505, a court should consider factors such as ‘frivolousness, motivation, objective

unreasonableness (both in the factual and in the legal components of the case) and the need in

particular circumstances to advance considerations of compensation and deterrence.” Ackermaneither litigant. See Bryant v. MV Transp., Inc., 231 F.R.D. 480, 481 (E.D. Va. 2005); Johnson v.

Pringte Dev., Inc., No. 05-37, 2006 WL 2189542, at *2 (M.D. Fla. Aug. 1, 2006); Gibson v.

Walgreen Co., No. 07-1053, 2008 WL 2607775, at *3 (M.D. Fla. July 1,2008). Indeed, the parties

entered into a settlement agreement through which both Plaintiff and Defendant made certain

concessions and compromises. (ECF No. 145-1). for example, while Plaintiff provided

Defendant with a general release and covenant not to sue, Defendant covenanted not to assist any

party involved in Plaintiff’s litigation and withdrew all ofits pending motions in this matter. (Id.).

Therefore, the Court again concludes that Defendant is not a prevailing party in this litigation.

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photography.” (ECF No. 1 ¶ 13). In its complaint, Plaintiff alleged that Defendant infringed its

copyrights “by copying multiple photographs from [Plaintiff]’s copyrighted works.” (Id. ¶ 24; see

also id. ¶J 42-46). In response to Plaintiffs complaint, Defendant did not file a motion to dismiss.

Rather, Defendant filed an answer, and thereafler engaged in discovery, settlement negotiations,

and summary judgment briefing. Having presided over this matter, the Court appreciates that

whether Defendant infringed Plaintiffs copyrights implicates significant legal issues and a number

of questions of fact. Accordingly, the Court concludes that Plaintiffs complaint was neither

frivolous nor objectively unreasonable. See Silberstein, 2003 WL 21297291, at *2 (holding that

where there were questions of fact with respect to whether the defendant infringed the plaintiffs

copyrights, the “plaintiffs complaint was not frivolous, and it was ‘objectively reasonable’ for her

to file it to preserve her rights”).

Further, the Court does not find that Plaintiff acted with any improper motivation, or that

there are any “special circumstances in this case that warrant an award of attorney’s fees in order

to advance considerations of compensation or deterrence.” Clarity Software, LLC v. Fin. Indep.

Grp., LLC, Nos. 12-1609 and 13-795, 2016 WL 3083383, at *6 (W.D. Pa. May 31, 2016).

Throughout this matter, which included the discovery process and summary judgment briefing,

the Court has never found that Plaintiff acted in an unreasonable manner or in bad faith. Therefore,

the Court will again decline to award counsel fees and costs pursuant to the Copyright Act.

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prevailing party” in its discretion. Securacomm Consulting, Inc. v. Securacom Inc., 224 F.3d 273,

279 (3d Cir. 2000) (quoting 15 U.S.C. § 1117(a)). With respect to what constitutes an “exceptionalcase,” the Third Circuit has held that:

Determining whether a case is exceptional is a two-step process. First, the District

Court must decide whether the defendant engaged in any culpable conduct. We

have listed bad faith, fraud, malice, and knowing infringement as non-exclusive

examples ofthe sort of culpable conduct that could support a fee award. Moreover,

the culpable conduct may relate not only to the circumstances of the Lanham Act

violation, but also to the way the losing party handled himself during the litigation.

Second, if the District Court finds culpable conduct, it must decide whether the

circumstances are “exceptional” enough to warrant a fee award. In sum, a district

court may not award fees without a finding of culpable conduct, but it may decline

to award them despite a finding of culpable conduct based on the totality of the

circumstances.

Green v. Fornario, 486 F.3d 100, 103-04 (3d Cir. 2007).

The Court finds that this case is not “exceptional” under § 3 5(a) so as to warrant attorneys’

fees and costs. “[A]n ‘exceptional’ case is simply one that stands out from others with respect to

the substantive strength of a party’s litigating position (considering both the governing law and the

facts ofthe case) or the unreasonable manner in which the case was litigated.” Fair Wind Sailing,

Inc. v. Dempster, 764 F.3d 303, 314 (3d Cir. 2014) (quoting Octane fitness, LLC v. ICONHealth

& Fitness, Inc., 134 S. Ct. 1749, 1756 (2014)). The Court is neither persuaded that Plaintiffs

arguments were so weak as to be frivolous or made in bad faith, nor persuaded that Plaintiff

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Defendant’s Application for Reliefis denied as moot, and Defendant’s Recusal Request is denied.

An appropriate Order accompanies this Opinion.Dated: C) c c r 2_ / 2_ c CLAIRE C. CECCHI, U.S.D.J.

To the extent that Defendant argues that it was prejudiced because the Court did not grant Defendant permission to exceed the page limit on its motion for attorneys’ fees and costs, (ECF

No. 152-1 at 21-23), “the manner in which a court disposes of cases on its docket is within its

discretion.” Walsh v. George, 650 F. App’x 130, 133 (3d Cir. 2016) (affirming the district court’s

decision to deny appellant’s motion to exceed the page limit for his briefin opposition to appellees’ motion to dismiss). The Court also notes that Defendant had an abundance ofspace to present hisarguments to the Court. More specifically, Defendant submitted: (1) a 39-page memorandum of

law, (ECF No. 138); (2) a 30-page declaration, (ECF No. 138-1); (3) a 174-page appendix, (ECF

Nos. 138-2; 139); and (4) a 16-page reply memorandum of law. (ECF No. 147).The Court also notes that Defendant submitted a letter to the Court requesting that the Court recuse

itself. (ECF No. 155 (“Recusal Request”)). In such letter, Defendant acknowledges that it does

not believe the undersigned has a personal animus affecting this case. (Id. at 3). Instead,

Defendant asserts that the undersigned has “hostility to [Defendant’s] very defense (that

[Plaintiff]’s case was entirely frivolous)[.]” (Id.). The Court’s disagreement with Defendant on

the merits of the legal arguments in this case does not mandate recusal. See Securacomm

Consulting, Inc., 224 F.3d at 278 (noting that “a party’s displeasure with legal rulings does not

form an adequate basis for recusal”). Accordingly, Defendant’s Recusal Request will be denied.

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