United States District Court, D. Nevada
For Reno-Tahoe Specialty, Inc., Plaintiff: John L. Krieger, LEAD ATTORNEY, Elias P. George, Gordon Silver, Las Vegas, NV.
For Mungchi, Inc., Defendant, Cross Claimant: Erica D Loyd' Kang & Associates, PLLC' Las Vegas, NV; Patrick W Kang, Kang & Associates, Las Vegas, NV.
Gloria M. Navarro, Chief United States District Judge.
This is an action for copyright infringement and related claims. Pending before the Court is the Motion to Reconsider, (ECF No. 104), filed by Defendant Mungchi, Inc. (" Mungchi"). Plaintiff Reno-Tahoe Specialty, Inc. filed a Response, (ECF No. 106).
On October 27, 2014, the Court granted Plaintiff's oral motion to strike the references to a fair use defense from Mungchi's Trial Brief. (ECF No. 101). In the instant Motion, Mungchi requests that the Court reconsider its ruling and allow the fair use defense to be asserted at trial.
This action centers upon allegations that Mungchi infringed upon Plaintiff's copyright over an enhanced image of the Las Vegas Strip by printing a nearly identical image on t-shirts that were sold in competition with Plaintiff's products. (Am. Compl. 2:27-3:4, 5:4-14. ECF No. 31). Plaintiff filed its original Complaint on June 20, 2012, (ECF No. 1), against Mungchi. Mungchi filed its Answer on August 23, 2012. (Answer 1:23-2:13, ECF No. 19). Though the Answer set forth twenty affirmative defenses, ( id . at 2:17-5:6), it did not indicate that Mungchi considered its actions to be protected under the doctrine of fair use.
The first of Mungchi's filings to include the term " fair use" was its Response to Plaintiff's First Motion for Partial Summary Judgment, filed on April 8, 2013. (Def.'s Response, ECF No. 44). Within its " Statement of Undisputed Facts, " Mungchi asserted, " Any use of the 'subject infringing image' by Defendant Mungchi is defensible since Defendant Mungchi was under the belief that the 'subject infringing image' was a fair use derivative work when purchased from Defendant Top Design." (Id. at 5:21-23). Mungchi made no other references to fair use within this filing.
Defendant also mentioned fair use in its Response to Plaintiff's Second Motion for Partial Summary Judgment, filed on August 19, 2013. (Def.'s Response, ECF No. 60). Mungchi argued, without elaborating, that " Plaintiff RTSI did not meet its burden in rebutting Mungchi's fair use claims, " and that " [T]he overall shift in focus as well as other changes readily visible in Top Design's image makes Mungchi's fair use claim a viable infringement defense." (Id. at 5:17-18, 9:23-24). This Response also quotes from a letter sent by Mungchi's counsel on June 8, 2012, which stated, " [Y]ou allege that Mungchi is infringing upon your client's copyright by selling t-shirts with a picture of the Las Vegas landscape. We must respectfully disagree, and argue that Mungchi's use qualifies as fair use." (Ex. 1 to Def.'s Response, ECF No. 60-1). However, the letter went on to discuss only that Mungchi's counsel did not believe Plaintiff's image was subject to copyright protection.
In its Order denying Plaintiff's Second Motion for Partial Summary Judgment, the Court observed that Mungchi's Response " appears to assert as an affirmative defense that Mungchi made fair use of the work, " but ultimately the Court did not rule upon the validity of Mungchi's perceived attempt to raise a fair use defense. (Order 7:24-25, 15:18-20, ECF No. 76).
Mungchi made no further mention of a fair use defense until it filed its Trial Brief on October 23, 2014. (Def.'s Trial Brief, ECF No. 92). In the Trial Brief, Mungchi argues that any use of Plaintiff's work is protected under the doctrine of fair use, pursuant to the four-factor test set forth in Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 105 S.Ct. 2218, 85 L.Ed.2d 588 (1985). (Id. at 11:1-12:21).
At Calendar Call, held on October 27, 2014, the Court granted Plaintiff's oral motion to strike the fair use defense from Mungchi's Trial Brief, finding that it was not timely raised and that Plaintiff would suffer substantial prejudice if it were asserted at trial. (ECF No. 101). In the instant Motion, Mungchi requests that the Court reconsider its ruling.
II. LEGAL STANDARD
Fed. R. Civ. P. 54(b) provides that any interlocutory order " may be revised at any time before the entry of a judgment adjudicating all claims and all the parties' rights and liabilities." Accordingly, " [w]here reconsideration of a non-final order is sought, the court has inherent jurisdiction to modify, alter or revoke it." Goodman v. Platinum Condo. Dev., LLC, 2012 WL 1190827, at *1 (D. Nev. 2012); see also City of Los Angeles, Harbor Div. v. Santa Monica Baykeeper, 254 F.3d 882, 889 (9th Cir. 2001) (A district court " possesses the inherent procedural power to reconsider, rescind, or modify an interlocutory order for cause seen by it to be sufficient."); United States v. Martin, 226 F.3d 1042, 1049 (9th Cir. 2000); Glavor v. Shearson Lehman Hutton, ...