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Malibu Media, LLC v. Harrison

United States District Court, S.D. Indiana, Indianapolis Division

February 10, 2015



WILLIAM T. LAWRENCE, District Judge.

This cause is before the Court on Defendant Michael Harrison's objection to Magistrate Judge Dinsmore's order granting Plaintiff's motion for fees and expenses (and supplemental request for fees) (Dkt. No. 269). The Court, having reviewed the relevant portions of the record, OVERRULES Harrison's objection, for the reasons set forth below.


On February 25, 2013, Plaintiff Malibu Media, LLC, filed its Third Amended Complaint against Harrison (and several other Defendants) alleging claims of direct copyright infringement and contributory copyright infringement. Dkt. No. 59. Thereafter, Harrison moved to compel certain discovery from Malibu Media. Dkt. No. 150. Subsequently, Malibu Media withdrew its contributory copyright infringement claim, leaving only its claim of direct copyright infringement against Harrison. See Dkt. No. 165.

Magistrate Judge Dinsmore ultimately denied Harrison's motion to compel on various grounds. Dkt. No. 179. Thereafter, Harrison objected to a portion of the Magistrate Judge's ruling. Dkt. No. 180. This Court overruled the objection, finding that Magistrate Judge Dinsmore's ruling was neither clearly erroneous nor contrary to law. Dkt. No. 253.

In denying Harrison's motion to compel, the Magistrate Judge also noted that, pursuant to Federal Rule of Civil Procedure 37(a)(5)(B), Malibu Media could submit a petition for the fees and expenses it incurred in responding to Harrison's motion to compel. Dkt. No. 179 at 5. Malibu Media did so on May 15, 2014, and supplemented its fee request on June 2, 2014.[1] Dkt. Nos. 181, 187. On October 23, 2014, finding that Harrison's motion to compel lacked "substantial justification, " Magistrate Judge Dinsmore granted Malibu Media's motion for attorney fees and expenses (and supplemental fees) and awarded it $7, 016.25. Dkt. No. 262.


Under Rule 37, the court "must... require the movant, the attorney filing the motion, or both to pay the party or deponent who opposed the motion its reasonable expenses incurred in opposing the motion, including attorney's fees, " unless the motion was "substantially justified or other circumstances make an award of expenses unjust." Fed.R.Civ.P. 37(a)(5)(B). The Rule "presumptively requires every loser to make good the victor's costs." Rickels v. City of S. Bend, Ind., 33 F.3d 785, 786 (7th Cir. 1994).

Harrison objects to the Magistrate Judge's decision awarding Malibu Media its fees and expenses and requests review by this Court. Harrison's objection is made pursuant to Federal Rule of Civil Procedure 72(a). Accordingly, the Court must set aside the Magistrate Judge's ruling on this nondispositive issue if it "is clearly erroneous or is contrary to law." Fed.R.Civ.P. 72(a).


The Court will discuss Harrison's arguments regarding each individual request in turn.

A. Request No. 6

With regard to Request No. 6, Magistrate Judge Dinsmore concluded, for the most part, that because the contributory infringement claim had been withdrawn, the information sought in that request was not relevant.[2] Harrison argued that the information only became irrelevant after Malibu Media filed its Fourth Amended Complaint, which withdrew the contributory infringement claim, six days after the parties finished briefing the motion to compel. Thus, according to Harrison, at all times relevant to the motion to compel, he faced a contributory infringement claim. Magistrate Judge Dinsmore concluded, however, that Harrison "knew that contributory infringement would not be an issue in this lawsuit as early as October, 2013, " three months before it filed its motion to compel. Dkt. No. 262 at 4.

Harrison also argued that the information in Request No. 6 was relevant on other grounds. The Magistrate Judge concluded, however, that his additional arguments "lacked substance." This Court also agreed with Malibu Media that "Defendant's infringing transactions with third parties [was] not the same infringing conduct at issue in this lawsuit." Dkt. No. 253 at 3. For these reasons, the Magistrate Judge ...

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