Opinion
No. 03 Civ. 4487 (LAK).
September 27, 2004
ORDER
By order dated February 13, 2004, this Court held defendants P1 Music ("P1") and Hogland Records ("Hogland") in default and referred the matter to Magistrate Judge Theodore H. Katz for an inquest on damages. In a report and recommendation dated September 15, 2004, Judge Katz recommended that the inquest be held in abeyance insofar as it related to plaintiffs' copyright infringement claims in order to avoid a risk of inconsistent judgments. It recommended also that no damages be awarded on plaintiffs' common law unjust enrichment and misappropriation claims on the alternative grounds that plaintiffs had failed to establish any such damages and that those claims for relief had been preempted by the Copyright Act of 1976. Plaintiffs' object to the recommendation that no damages be awarded on the common law claims.
Plaintiffs tacitly acknowledge that they submitted no evidence to Judge Katz in support of their common law damages claims. Their objections state instead that they " now submit the affidavit of Carla Ford Anderson" in support of those claims. Obj. at 5.
In Morris v. Amalgamated Lithographers of Am., Local One, 994 F.Supp. 161, 163 (S.D.N.Y. 1998), this Court wrote:
"Section 636(b)(1)(C) of the Judicial Code, 28 U.S.C. § 636(b)(1)(C), which provides for district court reviews of reports and recommendations by magistrate judges provides in Part that `[t]he judge may also receive further evidence . . .' in the course of such a review. (Emphasis added) But the statute is permissive, not mandatory. While there may be cases in which the receipt of further evidence is appropriate, there are substantial reasons for declining to do so as a general matter. First, permitting such piecemeal presentation of evidence is exceptionally wasteful of the time of both the magistrate and district judges, the former having been compelled to write an arguably useless report based on less than the universe of relevant evidence and the latter being deprived of the benefit of the magistrate judge's considered view of the entire record. Second, opposing parties would be put to the burden of proceedings which, to a considerable degree, would be duplicative. Third, there would be instances in which parties would be encouraged to withhold evidence, particularly evidence which might be embarrassing as well as helpful on the merits, in the expectation of using it before the district judge only if they failed to prevail before the magistrate judge on a more abbreviated showing. Finally, the routine consideration of evidence in support of objections which could have been presented before the magistrate judge would reward careless preparation of the initial papers.
"In this case, the defendant was well aware that its burden under Fed.R.Civ.P. 56 was to demonstrate that there is no genuine issue of fact and that it is entitled to judgment as a matter of law. In view of the plaintiff's claim that the union failed to represent him fairly and adequately in the grievance proceeding, the union was on notice that the details of exactly what it did and when — which is the focus of the evidentiary materials it now seeks to submit — necessarily were at the heart of its motion for summary judgment. It has offered no excuse whatever for failing to offer them in its initial papers. The Court therefore declines to consider them. Judge Peck was entirely correct in declining to afford the union a second bite at the apple."
This rationale applies here. Plaintiffs were referred to the Magistrate Judge for an inquest. They submitted proposed findings and conclusions, but no evidence of any damages on the common law claims. There is no good reason why this Court now should give them a second bite at the apple, especially as (1) they yet may recover damages on their copyright infringement claims, and (2) the effect of doing so would be to waste the Magistrate Judge's time in considering the matter and compel this Court now to do just what the reference was intended to avoid — conduct an inquest.
Plaintiffs' objections are overruled. The question of damages for copyright infringement is held in abeyance pending the outcome of the balance of the case. Plaintiffs shall take nothing against P1 and Hogland on their common law claims.
In view of the disposition of the common law claims on the ground that there is a failure of proof as to damages, it is unnecessary to consider whether those claims are preempted.
SO ORDERED.