     12-3344-cv
     L.A. Printex Indus., Inc. v. Pretty Girl of Ca., Inc., et al.

                          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            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 26th day of November, two thousand thirteen.
 5
 6       PRESENT: AMALYA L. KEARSE,
 7                DENNIS JACOBS,
 8                CHESTER J. STRAUB,
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - - - - - -X
12       L.A. PRINTEX INDUSTRIES, INC., a
13       California Corporation,
14                Plaintiff-Appellee,
15
16                    -v.-                                               12-3344
17
18       Does 1-10,
19                Defendants,
20
21              and
22
23       PRETTY GIRL OF CALIFORNIA, INC., a New
24       York Corporation, individually and
25       doing business as Pretty Girl, PRETTY
26       GIRL, INC., a New York Corporation,
27       ALBERT NIGRI, an individual,
28                Defendants-Appellants.
29       - - - - - - - - - - - - - - - - - - - -X

                                                  1
 1   FOR APPELLANT:             DANIELLE DERMESROPIAN (Vano I.
 2                              Haroutunian, on the brief)
 3                              Ballon Stoll Bader & Nadler,
 4                              P.C., New York, New York.
 5
 6   FOR APPELLEES:             STEPHEN DONIGER, Doniger /
 7                              Burroughs, APC, Culver City,
 8                              California, (Kevin C. Taylor,
 9                              Schnader Harrison Segal & Lewis
10                              LLP, New York, New York, on the
11                              brief).
12
13        Appeal from a judgment of the United States District
14   Court for the Southern District of New York (Forrest, J.).
15
16        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
17   AND DECREED that the judgment of the district court be
18   AFFIRMED.
19
20        Pretty Girl of California, Inc. and Pretty Girl, Inc.
21   (collectively, “Pretty Girl”) and their owner, Albert Nigri,
22   appeal from the judgment of the United States District Court
23   for the Southern District of New York (Forrest, J.), holding
24   them liable for willful copyright infringement, and jointly
25   and severally liable for $40,000 in damages to L.A. Printex
26   Industries, Inc. (“L.A. Printex”). On appeal, Pretty Girl
27   and Nigri challenge the denial of their motions for judgment
28   as a matter of law (“JMOL”) and for remittitur of damages,
29   arguing: (1) there was insufficient evidence to support a
30   finding of willful infringement; (2) the $40,000 damage
31   award “shocks the judicial conscience” and must be reduced;
32   and (3) L.A. Printex’s claim is barred by laches. We assume
33   the parties’ familiarity with the underlying facts, the
34   procedural history, and the issues presented for review.
35
36   1.   The district court’s ruling on a post-verdict motion
37   for JMOL under Rule 50(b) is reviewed de novo. Runner v.
38   N.Y. Stock Exch., Inc., 568 F.3d 383, 386 (2d Cir. 2009). A
39   Rule 50 motion may be granted only if, “after viewing the
40   evidence in the light most favorable to the non-moving party
41   and drawing all reasonable inferences in favor of the
42   non-moving party, [the court] finds that there is
43   insufficient evidence to support the verdict.” Fabri v.
44   United Techs. Int'l, Inc., 387 F.3d 109, 119 (2d Cir. 2004).

                                  2
 1        When a plaintiff can demonstrate, either directly or
 2   through circumstantial evidence, that the defendant had
 3   knowledge that his actions constituted infringement, or
 4   recklessly disregarded such possibility, enhanced statutory
 5   damages for willful copyright infringement under 17 U.S.C. §
 6   504(c)(2) may be awarded. See Bryant v. Media Right Prods.,
 7   Inc., 603 F.3d 135, 143 (2d Cir. 2010) (reciting the
 8   standard for proving willful infringement); Isl. Software &
 9   Computer Serv. v. Microsoft Corp., 413 F.3d 257, 264 (2d
10   Cir. 2005) (noting that a plaintiff can prove willfulness
11   “by proffering circumstantial evidence that gives rise to an
12   inference of willful conduct”). L.A. Printex, a California-
13   based company, presented evidence that all samples of its
14   designs contained copyright notifications, that the design
15   on the infringing skirt was identical to those on the
16   samples, and that Pretty Girl and Nigri had close
17   connections to another “Pretty Girl” company in California,
18   owned by Nigri’s father, which likely manufactured the
19   skirt. The garment bore the label “PGNY,” easily permitting
20   the jury to infer that the garment was designed and
21   manufactured at the behest of the New York-based Pretty Girl
22   company. This evidence is sufficient to support a finding
23   of knowledge or, at least, reckless disregard of the
24   possibility of infringement.
25
26        Although Nigri denied any knowledge of the origin of
27   the design and the skirt’s manufacture, the jury was free to
28   disregard his testimony. See Fabri v. United Techs. Int’l,
29   Inc., 387 F.3d 109, 119 (2d Cir. 2004) (“The district court
30   cannot set aside the jury’s credibility findings and cannot
31   find for the movant based on evidence the jury was entitled
32   to discredit. We apply the same standard.” (internal
33   citation omitted)).
34
35   2.   “The standard for appellate review of damage awards ...
36   is whether the award is so high as to shock the judicial
37   conscience and constitute a denial of justice.” O'Neill v.
38   Krzeminski, 839 F.2d 9, 13 (2d Cir. 1988) (internal
39   quotation marks omitted). Because the jury found that
40   Pretty Girl and Nigri had willfully infringed the L.A.
41   Printex copyright, the Copyright Act permitted the jury to
42   award up to $150,000 in damages “in its discretion.” 17
43   U.S.C. § 504(c)(2); Feltner v. Columbia Pictures Television,
44   Inc., 523 U.S. 340 (1998). We apply a deferential standard

                                  3
 1   in reviewing an award of statutory damages. Yurman Design,
 2   Inc. v. PAJ, Inc., 262 F.3d 101, 113 (2d Cir. 2001).
 3
 4        The damages award of $40,000 is well below the
 5   statutory maximum. Pretty Girl and Nigri argue that the
 6   award is disproportionate to the profits generated by sales
 7   of the infringing garment. But the “statutory award is also
 8   meant to discourage wrongful conduct ...[, which] is why the
 9   statute permits ... additional damages where an infringement
10   is willful.” Id. at 114 (internal quotation marks omitted)
11   (upholding a $275,000 damages award when only $19,000 in
12   infringement-related profits were generated). The award
13   does not shock the conscience of the Court.
14
15   3.   “Whether laches bars an action in a given case ... is a
16   question primarily addressed to the discretion of the trial
17   court.” Burnett v. N.Y. Cent. R.R. Co., 380 U.S. 424, 435
18   (1965) (internal quotation marks omitted). An abuse of
19   discretion could consist of an erroneous view of the law or
20   a clearly erroneous assessment of the evidence, see, e.g.,
21   Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405 (1990),
22   or a decision that, while not necessarily the product of a
23   legal error or a clearly erroneous factual finding, cannot
24   be located within the range of permissible decisions, see,
25   e.g., Sims v. Blot, 534 F.3d 117, 132 (2d Cir. 2008); Zervos
26   v. Verizon New York, Inc., 252 F.3d 163, 169 (2d Cir. 2001).
27   We see no abuse of discretion here.
28
29        To prevail on a laches defense, the defendant must show
30   that: “(1) the plaintiff knew of the defendant’s misconduct;
31   (2) the plaintiff inexcusably delayed in taking action; and
32   (3) the defendant was prejudiced by the delay.” Ikelionwu
33   v. United States, 150 F.3d 233, 237 (2d Cir. 1998). Pretty
34   Girl and Nigri argue that they became unable to timely
35   produce sales reports because of L.A. Printex’s delay in
36   bringing the action; but the record demonstrates that they
37   were able to generate reports - and that, in fact, they did
38   so. See L.A. Printex Indus., Inc. v. Pretty Girl of Ca.,
39   Inc., et al., No. 09-cv-4206 (S.D.N.Y. April 13, 2011, ECF
40   No. 28). In denying defendants’ motion to reopen discovery,
41   the district court found defendants’ argument
42   “unsatisfactory to explain why the Sales Report was not
43   produced” until after discovery concluded. Pretty Girl and


                                  4
 1   Nigri suffered no prejudice as a result of delay, and their
 2   laches defense therefore fails.
 3
 4        For the foregoing reasons, and finding no merit in
 5   Pretty Girl’s and Nigri’s other arguments, we hereby AFFIRM
 6   the judgment of the district court.
 7
 8                              FOR THE COURT:
 9                              CATHERINE O’HAGAN WOLFE, CLERK
10




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