United States District Court, S.D. California
ORDER DENYING BRIGHTON COLLECTIBLES, INC.’S
MOTION FOR RECONSIDERATION (DOC. NO. 222)
Anthony J. Battaglia, United States District Judge
before the Court is Defendant Brighton Collectibles,
Inc.’s (“Defendant”) motion for
reconsideration, (Doc. No. 222), of the Court’s
remittitur, which permitted Plaintiff to elect wrongful
profits after the Court concluded the jury’s
award of statutory damages was excessive, (Doc. No. 218 at
11-17). Plaintiff opposes the motion. (Doc. No. 228.) The
Court finds the matter suitable for decision on the papers,
without oral argument, pursuant to Local Civil Rule 7.1.d.1.
For the reasons set forth below, the Court DENIES
dispute arose from Defendant’s willful infringement of
Plaintiff’s jewelry.Beginning November 10, 2015, the Court
presided over a four-day jury trial on Plaintiff’s
copyright infringement claim. (Doc. No. 148.) On November 18,
2015, the jury returned a special verdict. (Doc. Nos. 156,
161.) Out of six of Defendant’s designs, the jury found
one design, the Toledo Statement Earrings, infringed two of
Plaintiff’s thirteen copyrights protecting two versions
of the Buddha’s Kiss Earrings. (Doc. No. 161.) The jury
found Defendant’s infringement was willful.
(Id. at 7.) The jury awarded Plaintiff $176, 890 in
Defendant’s wrongful profits and $203, 571 in statutory
damages. (Id. at 7.) Plaintiff elected to receive
statutory damages, and the Court entered judgment. (Doc. No.
a slew of post-trial motions, Defendant moved for judgment as
a matter of law, or, alternatively, a new trial. (Doc. No.
175.) As relevant to its instant motion, Defendant argued
that the jury’s statutory damages award was excessive
because only one work had been infringed, notwithstanding the
two copyrights. (Id. at 24-25.) In its order ruling
on the post-trial motions, the Court agreed with Defendant
that only one of Plaintiff’s works was infringed and
that the statutory damages award was thus excessive. (Doc.
No. 218 at 15-16.) In light of that finding, the Court gave
Plaintiff a choice: accept a remittitur to the jury’s
award of wrongful profits in the amount of $176, 890 or retry
its damages case. (Id. at 16-17.) Plaintiff opted
for the former. (Doc. No. 220.) Following this election, the
judgment was amended on April 6, 2016, to reflect judgment in
favor of Plaintiff in the amout of $176, 890. (Doc. No. 221.)
4, 2016, Defendant filed the instant motion, seeking
reconsideration of Plaintiff’s reelection of wrongful
profits and to amend the judgment. (Doc. No. 222.) Plaintiff
filed an opposition, (Doc. No. 228), and Defendant replied,
(Doc. No. 229). The Court took the matter under submission on
July 28, 2016. (Doc. No. 232.) This order follows.
59(e) of the Federal Rules of Civil Procedure provides that,
after entry of judgment, a court may alter or amend the
judgment. “[T]he district court enjoys
considerable discretion in granting or denying [a Rule 59(e)]
motion.” Allstate Ins. Co. v. Herron, 634 F.3d
1101, 1111 (9th Cir. 2011) (quoting McDowell v.
Calderon, 197 F.3d 1253, 1255 n.1 (9th Cir. 1999) (en
banc) (per curiam)). However, because “the rule offers
an extraordinary remedy, [it should] be used sparingly in the
interests of finality and conservation of judicial
resources.” Kona Enters., Inc. v. Estate of
Bishop, 229 F.3d 877, 890 (9th Cir. 2000) (citation and
internal quotation marks omitted). As such, a Rule 59(e)
motion generally should not be granted absent highly unusual
circumstances, 389 Orange St. Partners v. Arnold,
179 F.3d 656, 665 (9th Cir. 1999), such as an intervening
change in controlling law, the availability of newly
discovered or previously unavailable evidence, or the need to
correct a clear error or prevent a manifest injustice,
Allstate Ins. Co., 634 F.3d at 1111; see also
McDowell, 197 F.3d at 1255 n.4 (finding no abuse of
discretion “merely because the underlying order is
erroneous, rather than clearly erroneous”).
parties’ respective positions are straightforward.
Defendant argues that permitting Plaintiff to change its
election from statutory damages to wrongful profits was
clearly erroneous because once an election has been made, the
plaintiff cannot reelect.(Doc. No. 222 at 8-10.) As such,
Defendant concludes the award of $176, 890 is excessive given
the Court’s finding that only one work was infringed,
(see Doc. No. 218 at 15-16), and that 17 U.S.C.
§ 504(c)(2) limits statutory damages to $150, 000 per
work infringed, (Doc. No. 222 at 10-13). Plaintiff counters
that no grounds for reconsideration are present to justify
disturbing the Court’s decision. (Doc. No. 228 at 3-4.)
Plaintiff further argues that even when considering the
merits of Defendant’s position, the reelection occurred
prior to entry of final judgment and was thus proper under
§ 504(c)(2). (Id. at 5-6.)
reviewed the parties’ arguments in light of the unique
circumstances of this case, the Court concludes that the
extraordinary remedy of granting reconsideration is not
warranted. Defendant first relies on the plain language of
the Copyright Act as supporting its interpretation. 17 U.S.C.
§ 504(c)(1) permits the copyright owner to “elect,
at any time before final judgment is rendered, to recover,
instead of actual damages and profits, an award of statutory
damages . . . .” Defendant reads this section as
unequivocally providing that a copyright owner may not
reelect the form of damages once an election has been made.
(See Doc. No. 222 at 10; Doc. No. 229 at 7.)
However, nothing on the statute’s face suggests a
reelection may never occur under any circumstances.
further relies on two out-of-circuit decisions to support its
position. In Twin Peaks Productions, Inc. v. Publications
International, Ltd., the district court, following an
evidentiary hearing on the issue of damages, awarded the
plaintiff (“TPP”) $120, 000 in statutory damages
or $125, 000 in actual damages. 996 F.2d 1366, 1371 (2d Cir.
1993). TPP exercised its right to elect statutory damages
against the defendant (“PIL”), presumably because
TPP determined it was the award most likely to withstand
appellate review. Id. at 1380. On appeal, the
parties disputed issues relating to both statutory and actual
damages; however, the Second Circuit found any issues
relating to actual damages mooted by TPP’s election of
statutory damages. Id. at 1380, 1382. The Second
We do not think the election [between statutory and actual
damages] continues into the appellate stage. Once a plaintiff
has elected statutory damages, it has given up the right to
seek actual damages and may not renew that right on appeal by
cross-appealing to seek an increase in the actual damages.
Id. at 1380. Relying on Twin Peaks, the
Eleventh Circuit held similarly in Jordan v. Time,Inc. There, the jury awarded the plaintiff
(“Jordan”) actual damages. 111 F.3d 102, 104
(11th Cir. 1997). Apparently unsatisfied with that award,
Jordan timely elected-after the jury verdict but before final
entry of judgment-to recover statutory damages. Id.
On appeal, Jordan sought to challenge certain instructions
given by the trial court to the jury that related to actual
damages. Id. Relying on Twin Peaks, the