United States District Court, S.D. Indiana, Indianapolis Division
Jane Magnus-Stinson, Chief Judge.
Benjamin Vient, proceeding pro se, brought this lawsuit in
December 2017, alleging (insofar as the Court could
determine) that Defendant Connersville News Examiner
(“CNE”) infringed upon his copyright to
an article entitled “On the Rails.” [Filing No.
19 at 4 (citing Filing No. 6 at 2-3); see Filing No.
1.] On April 5, 2018, CNE filed its Motion to Dismiss
for Failure to State a Claim, [Filing No. 17], and
accompanying Memorandum, [Filing No. 18]. Both filings
indicated that they were served on Mr. Vient “by
first-class U.S. Mail, postage prepaid and properly
addressed.” [Filing No. 17 at 2; Filing No. 18 at 4.]
On May 23, 2018, long after the time for Mr. Vient to respond
to CNE's Motion had passed without any filings, the Court
granted CNE's Motion, dismissed this lawsuit with
prejudice, and entered final judgment in CNE's favor.
[Filing No. 19; Filing No. 20.]
Order granting CNE's Motion to Dismiss, the Court
observed that “Mr. Vient does not allege that he owns a
copyright, nor that the News-Examiner copied elements of that
copyrighted work. The only allegations in his Complaint are
that there were ‘copyright breaches,' and that he
requested information from the News-Examiner but it did not
respond.” [Filing No. 19 at 6.] Along the way, the
Court provided Mr. Vient with “numerous opportunities
to amend his Complaint” and, in light of his failure to
take advantage of those opportunities or to respond to the
Motion to Dismiss, dismissed the Complaint with prejudice for
failure to state a claim. [Filing No. 19 at 7.]
pending before the Court are a litany of post-judgment
filings by Mr. Vient, received in February and March 2019.
Several potentially pertain to the merits of the judgment
entered in CNE's favor, including Mr. Vient's
“Motion for Relief from a Judgment.” [Filing No.
21.] The Court considers these filings before addressing Mr.
Vient's additional filings requesting electronic service
and further proceedings. Each of Mr. Vient's Motions is
without merit, and each is therefore DENIED
for the reasons described below.
Requesting Relief from Judgment
of Mr. Vient's post-judgment filings potentially impact
the dismissal of his Complaint. The first is Mr. Vient's
Motion for Relief from a Judgment, filed on February 7, 2019.
[Filing No. 21.] Mr. Vient asks the Court to reopen the case
due to “newly discovered evidence.” [Filing No.
21 at 1.] In support, Mr. Vient attaches what appears to be a
printout of a screenshot of a story entitled “On the
Rails, ” [Filing No. 21-2 at 1-2], and provides a
copyright registration number, [Filing No. 21 at 2].
response, CNE argues that the copyright registration number
indicates that the copyright was obtained after the lawsuit
was filed but while the litigation was pending, making Mr.
Vient's Motion improper. [Filing No. 22 at 6; Filing No.
Vient argues in reply that he “reasonably contacted the
Defendant's lawyer in October and November 2018 with the
newly discovered evidence” and suggests that he meets
the standard for relief in this case. [Filing No. 30 at 1.]
Mr. Vient also states: “To clarify Defendant's
statements: the Newly Discovered Evidence is Exhibits A and
B, not a Copyright Registration Number.” [Filing No. 30
at 1.] In his Motion to Add Readout to the Evidence in the
Motion for Relief from a Judgment, which the Court construes
as an additional reply brief, Mr. Vient states that the
printouts show that his story has been “reproduced,
” “distributed, ” and
“displayed” by CNE, in violation of the copyright
laws. [Filing No. 26 at 1.]
final document which may be construed as challenging the
judgment entered in this case is his Motion for
Point-of-Order, filed on March 15, 2019. [Filing No. 32.] In
that document, Mr. Vient states that he “never
received” CNE's response to his Motion for Relief
from CNE, but instead received a copy from the Court's
staff. [Filing No. 32 at 1.] He also states that he
“do[es] not see” CNE's Motion to Dismiss in
the documents he has received. [Filing No. 32 at 1.] He also
asks the Court to explain when service is required. [Filing
No. 32 at 1.]
60(b) provides that “[o]n motion and just terms, the
court may relieve a party or its legal representative from a
final judgment, order, or proceeding.” Fed.R.Civ.P.
60(b). “Relief under Rule 60(b) is an extraordinary
remedy granted only in exceptional circumstances, ”
Nelson v. Napolitano, 657 F.3d 586, 589 (7th Cir.
2011), and serves the “limited function” of
“correct[ing] manifest errors of law or fact or to
present newly discovered evidence, ” Hicks v.
Midwest Transit, Inc., 531 F.3d 467, 474 (7th Cir. 2008)
(internal quotations omitted). The ground primarily invoked
by Mr. Vient is found in Rule 60(b)(2), allowing for relief
for “newly discovered evidence that, with reasonable
diligence, could not have been discovered in time to move for
a new trial under Rule 59(b), ” though his Motion for
Point-of-Order also suggests that he may be seeking relief
due to CNE's alleged failure to serve its Motion to
Dismiss. In the appropriate case, a lack of service could
potentially provide a ground for Rule 60(b) relief under
paragraphs (1) (“excusable neglect”), (3)
(“misrepresentation . . . by an opposing party”),
or (6) (“any other reason that justifies
in Mr. Vient's submissions suggests that there are
exceptional circumstances warranting Rule 60(b) relief in
this case. The Court cannot make heads or tails of what Mr.
Vient means when he says that “Exhibits A and B”
are the “Newly Discovered Exhibits.” The only
exhibit he attached to his Motion for Relief is a printout of
a screenshot showing what appears to be his story entitled
“On the Rails, ” and that story is not new
evidence. It appears that Mr. Vient has highlighted his name
and any reference to the News-Examiner, including the
News-Examiner's copyright notice at the bottom of the
page. [Filing No. 21-2 at 1-2.] Nothing suggests however that
this notice is evidence that Mr. Vient could not have
previously discovered. Nor is CNE's possible copyright
assertion relevant to the deficiencies identified in Mr.
Vient's claim- namely, that he failed to allege that he
owned a copyright to the story. Even if the filings reflected
new, relevant evidence, Mr. Vient's Motion would be
woefully untimely. Mr. Vient indicates that he raised this
“newly-discovered” evidence with CNE's
counsel back in “October and November 2018, ” yet
he failed to file anything in this Court until February 7,
2019. This unreasonable and unexplained delay provides an
additional and independent basis for denying Mr. Vient's
does the addition of the copyright registration number (which
Mr. Vient disclaims as the basis for his Rule 60(b) Motion)
entitle Mr. Vient to relief, inasmuch as the copyright was
registered on January 25, 2018, according to the
publicly-available copyright catalog maintained by the U.S.
Copyright Office (and cited to by CNE). This was a month
after this lawsuit was instituted on December 20,
2017-confirming, again, that Mr. Vient did not plausibly
allege that CNE had infringed Mr. Vient's copyright
because he had not registered the copyright at the time he
filed the lawsuit. Moreover, were the addition of the
copyright registration number the basis for Mr. Vient's
Motion, it too would be untimely. This matter had not yet
been dismissed as of January 25, 2018, and CNE had not yet
filed its Motion to Dismiss. Mr. Vient had ample opportunity
to raise the copyright registration issue while this matter
was still open and pending.
any alleged issue with CNE's service of the Motion to
Dismiss likewise does not entitle Mr. Vient to any relief.
Though CNE's filings all indicate that they were served
on Mr. Vient by U.S. Mail as required by Rule 5, even
assuming for the sake of argument that Mr. Vient did not
receive CNE's Motion to Dismiss, Mr. Vient does not argue
that he did not receive the Court's Order granting the
Motion or the Final Judgment entered in CNE's favor. Mr.
Vient therefore received full notice both that his case was
being dismissed and the reasons for the dismissal. The
Court's Order and Judgment were both entered on May 23,
2018. Mr. Vient's unreasonably delayed filing his Motion
for Point-of-Order raising the alleged service issue for over
nine months after the Court's ruling, and ...