Liebowitz v. Bandshell Artist Management ( 2021 )

20-2304
Liebowitz, et al. v. Bandshell Artist Management
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX 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.
1
2 At a stated term of the United States Court of Appeals for the Second Circuit, held
3 at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
4 York, on the 25th day of June, two thousand twenty-one.
5
6 Present:
7 DEBRA ANN LIVINGSTON,
8 Chief Judge,
9 RICHARD C. WESLEY,
10 SUSAN L. CARNEY,
11 Circuit Judges.
12 ______________________
13
14 RICHARD P. LIEBOWITZ, LIEBOWITZ LAW FIRM, PLLC,
15
16 Appellants,
17
18 ARTHUR USHERSON,
19
20 Plaintiff,
21 v. 20-2304
22
23 BANDSHELL ARTIST MANAGEMENT,
24
25 Defendant-Appellee. 1
26 ______________________
1 The Clerk of the Court is directed to amend the caption as set forth above.
1 For Appellants: BRIAN A. JACOBS (Robert J. Anello, Kevin
2 Grossinger, A. Dennis Dillon, on the brief), Morvillo
3 Abramowitz Grand Iason & Anello P.C., New York,
4 NY.
5
6 For Defendants-Appellees: BRAD R. NEWBERG, McGuire Woods LLP, Tysons
7 Corner, VA.
8
9 Appeal from the United States District Court for the Southern District of New York
10 (Furman, J.).
11 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
12 AND DECREED that the order of the district court is AFFIRMED in part.
13 Richard P. Liebowitz and his law firm, the Liebowitz Law Firm, PLLC, appeal the
14 district court’s order imposing sanctions under Federal Rule of Civil Procedure 16, 28
15 U.S.C. § 1927, and the court’s inherent authority. Liebowitz, representing plaintiff Arthur
16 Usherson, sued Bandshell Artist Management (“Bandshell”) alleging that Bandshell
17 infringed on Usherson’s copyright for a photograph. The district court ordered
18 Liebowitz and his firm to pay to the court $83,517.49 in attorney’s fees and costs and
19 $20,000 for falsely alleging in the complaint that the photograph was registered with the
20 U.S. Copyright Office, failing to reasonably investigate the issue, and continuing to
21 maintain the lawsuit after being put on notice of this registration issue. In addition, the
22 court imposed non-monetary sanctions requiring Liebowitz to serve a copy of the court’s
23 opinion on Usherson and all other clients of his firm, to file a copy of the opinion on the
24 docket of any pending case and new case brought by Liebowitz or any attorney at his
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1 firm within one year from the date of the opinion, and to include with any complaint in
2 a copyright infringement case brought by Liebowitz or any attorney at his firm a copy of
3 the deposit files maintained by the U.S. Copyright Office as proof of the registration of
4 the relevant copyright work. We assume the parties’ familiarity with the underlying
5 facts, procedural history, and the issues for review.
6 We will decide Liebowitz’s challenge to the district court’s monetary sanctions in
7 a separate forthcoming opinion. In this summary order, we focus on the court’s non-
8 monetary sanctions. “We review a district court’s imposition of sanctions for abuse of
9 discretion”; however, because the district court is the “‘accuser, fact finder and sentencing
10 judge’ all in one” when imposing sanctions, “our review is ‘more exacting than under the
11 ordinary abuse-of-discretion standard.’” Wolters Kluwer Fin. Servs., Inc. v. Scivantage, 564
12 F.3d 110, 113 (2d Cir. 2009) (citation omitted). A district court abuses its discretion if its
13 sanctions are based on “an erroneous view of the law or on a clearly erroneous
14 assessment of the evidence,” and where its sanctions “cannot be located within the range
15 of permissible decisions.” Id. (citations omitted).
16 Appellants’ arguments that the district court abused its discretion in imposing the
17 non-monetary sanctions are unavailing. First, the court’s findings that Liebowitz lied and
18 acted in bad faith when he represented to the court that the mediator gave Usherson
19 permission to attend the mediation by phone and when he alleged in the complaint that
20 the photograph was registered were not clearly erroneous. The evidence in the record––
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1 for example, the mediator’s testimony and the email exchange between the mediator and
2 Bandshell’s counsel the night before the mediation––supports both conclusions. United
3 States v. Iodice, 525 F.3d 179, 185 (2d Cir. 2008) (“When . . . credibility determinations are
4 at issue, we give particularly strong deference to a district court finding.”). Liebowitz’s
5 conduct was also not “colorable” as required to contest the court’s bad-faith finding. See
6 Wolters Kluwer Fin. Servs., Inc., 564 F.3d at 114. There exists no “legal or factual basis” to
7 excuse Liebowitz of his duty to reasonably investigate the claims in his complaint. Id.
8 Second, Appellants’ arguments that the non-monetary sanctions are overbroad
9 because of their nationwide scope fail to persuade. Appellants rely on our decision in
10 Enmon v. Prospect Cap. Corp., 675 F.3d 138 (2d Cir. 2012), where the law firm made several
11 misrepresentations and the district court only required the firm to file a copy of its
12 sanctions order with future pro hac vice applications in the Southern District of New York.
13 See id. at 148. However, unlike the law firm’s misconduct in Enmon, Liebowitz’s
14 misconduct in this case––including violating multiple court orders, repeatedly lying to
15 the court, and filing a complaint with a false allegation––justify the nationwide scope of
16 the court’s sanctions. Moreover, Liebowitz’s pattern of misconduct before many judges
17 of the Southern District of New York and across the country, described at length in the
18 district court’s opinion, squarely defeats Appellants’ suggestions to the contrary. See, e.g.,
19 In re Martin-Trigona, 737 F.2d 1254, 1262 (2d Cir. 1984) (affirming “restrictions placed
20 upon [attorney’s] bringing of new actions in all federal district courts” (emphasis added)).
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1 See generally Usherson v. Bandshell Artist Mgmt., No. 19-CV-6368 (JMF), 2020 WL 34836612 (S.D.N.Y. June 26, 2020).
3 Finally, the district court did not abuse its discretion by ordering Liebowitz and
4 his firm to include a copy of the deposit files with each copyright infringement complaint
5 they file for a year. Requiring Appellants to include a copy of the deposit files does not
6 impermissibly shift the burden of proof. Although the party challenging the validity of
7 a copyright registration bears the burden of proof, that burden attaches only for
8 presumptively valid copyrights; plaintiffs bear the burden of establishing that
9 presumption. See Urbont v. Sony Music Ent., 831 F.3d 80, 88–89 (2d Cir. 2016); see also Carol
10 Barnhart Inc. v. Econ. Cover Corp., 773 F.2d 411, 414 (2d Cir. 1985). Courts cannot rely on
11 the face of the complaint to establish this presumption in the cases Appellants bring,
12 given that Liebowitz’s associate “admitted that it is the regular practice of [their firm] to
13 file copyright infringement cases without verifying that the works in question are
14 properly registered.” 2 Special App. 19–20; see also Joint App. 483.
15 We have considered Appellants’ remaining arguments and find them to be
16 without merit. Accordingly, we AFFIRM in part the June 26, 2020 order of the district
17 court as to the non-monetary sanctions. We explain more fully our reasoning for
2Appellants’ argument that the sanction would impose a substantial burden because deposit files
are expensive to obtain is unpersuasive. As the district court noted, Liebowitz often settles cases
“‘in the low thousands or tens of thousands of dollars’ . . . a far cry from the $200 to $1,200 cost of
obtaining a deposit copy.” Special App. 72–73 n.7 (citation omitted).
5
1 affirming these sanctions as well as our decision regarding the monetary sanctions in a
2 forthcoming opinion to be issued separately.
3
4 FOR THE COURT:
5 Catherine O’Hagan Wolfe, Clerk
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