Opinion
No. 10-2610-cv
06-20-2013
PEARSON EDUCATION, INC., JOHN WILEY & SONS, INC., CENGAGE LEARNING, INC., THE MCGRAW-HILL COMPANIES, INC., Plaintiffs-Appellees, v. VINOD KUMAR, DART AIR, INC., DBA Unique Books, DBA Jhon Book Store, DBA Modern Books, DBA Expressbooks06, DBA Express Books, DBA Qualityinstruments400, Defendants-Appellants, VIRENDER YADAV, SUKWINDER SINGH, DBA Modern Books, DBA Express Books, JOHN DOES 1-5, Defendants.
APPEARING FOR APPELLANTS: VIVEK SURI, ESQ., New York, New York. APPEARING FOR APPELLEES: WILLIAM DUNNEGAN, (Laura Scileppi, on the brief), Dunnegan & Scileppi LLC, New York, New York.
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 TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 20th day of June, two thousand thirteen. PRESENT: JOSEPH M. MCLAUGHLIN,
GUIDO CALABRESI,
REENA RAGGI,
Circuit Judges.
APPEARING FOR APPELLANTS:
VIVEK SURI, ESQ., New York, New York. APPEARING FOR APPELLEES:
WILLIAM DUNNEGAN, (Laura Scileppi, on the
brief), Dunnegan & Scileppi LLC, New York,
New York.
Appeal from a judgment of the United States District Court for the Southern District of New York (Charles S. Haight, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment entered on May 27, 2010, is VACATED and the case REMANDED.
On September 19, 2011, we summarily affirmed the district court's grant of summary judgment in favor of plaintiffs in this case. See Pearson Educ., Inc. v. Yadav, 452 Fed. Appx. 11 (2d Cir. 2011) (summary order). The Supreme Court subsequently vacated the judgment of this court, see Kumar v. Pearson Educ., Inc., 133 S. Ct. 1631 (2013), and remanded the case for further consideration in light of Kirtsaeng v. John Wiley & Sons, Inc., 133 S. Ct. 1351 (2013) (holding first sale doctrine applicable to copies of copyrighted works lawfully made abroad).
It is evident—and neither party disputes—that Kirtsaeng requires vacatur of the district court's judgment entered on May 27, 2010, as to plaintiffs' copyright claim. Accordingly, the judgment of the district court is VACATED and the case REMANDED with directions to enter judgment in favor of defendants on plaintiffs' copyright infringement claim. No appeal having been filed from that part of the district court's judgment entered on August 24, 2010, after trial on plaintiffs' trademark and unfair competition claims, we leave that judgment undisturbed.
FOR THE COURT:
CATHERINE O'HAGAN WOLFE, Clerk of Court