Sara Designs, Inc., Plaintiffv.A Classic Time Watch Co. Inc., New York and Company, Inc., Defendants
MEMORANDUM ORDER A Classic Time Watch Co. Inc. and New York and Company, Inc. (“Defendants”), have moved the Court for a grant of attorneys’ fees pursuant to 17 U.S.C. section 505 (“Section 505″) following the dismissal of Sara Designs, Inc.’s, copyright infringement claims. (Docket Entry No. 54.) The Court has considered the submissions of the parties carefully and, for the following reasons, grants Defendants’ motion for attorneys’ fees.BACKGROUNDIn its original Complaint, Sara Designs, Inc. (“Plaintiff”), alleged, inter alia, that Defendants infringed on Plaintiff’s copyright in “wrap” style watches. Several purportedly valid copyright registration certificates were attached to the complaint, but the certificates were devoid of descriptions (other than model numbers), other references to, or images of the purportedly copyrighted material. See Sara Designs, Inc. v. A Classic Time Watch Co., 234 F. Supp. 3d 548, 554-55 (S.D.N.Y. 2017) (the “February Order”); (see also Complaint, Docket Entry No. 5). Defendants moved to dismiss the Complaint. On December 12, 2016, after Defendants’ motion to dismiss had been fully briefed, the Court gave Plaintiff an opportunity to supplement and clarify its pleading, ordering Plaintiff to file a supplemental submission by January 13, 2017, “clarifying the specific copyrighted watches it claims to have been infringed and any corresponding allegedly infringing watches, including providing a side-by-side comparison or chart with images of the watches, and documentation clarifying the scope of the copyright application and grant covering the allegedly infringed watches.” (Order, Docket Entry No. 32.) The Court noted that “the certificates of registration attached as Exhibit B to the Complaint merely list the generic titles and, apparently, marked numbers of the works without any discernable corresponding watch design or image.” (Id.) Defendants’ response to the order did not elucidate the features of the designs that Plaintiff claimed were being infringed. (See generally Supp. Decl. of Barry E. Janay, Docket Entry No. 33.) In a January 20, 2017, Order, the Court gave Plaintiff a further chance to clarify its claims, ordering the parties to appear for oral argument of the motion to dismiss and noting that the supplemental declaration identified seven purportedly infringing watches but that Plaintiff had “presented only two potentially relevant Certificates of Registration.” (Docket Entry No. 35.) Plaintiff’s counsel proffered at the oral argument that Plaintiff had additional materials that would support its claim that the certificates of registration cover the allegedly infringed watches, acknowledged that the material had not been included in the supplemental submission, and made an oral application for leave to amend the Complaint. February Order, 234 F. Supp. 3d at 553. The Court took the motion under advisement following the oral argument and issued the February Order shortly thereafter. Id.In that February Order, the Court dismissed Plaintiff’s federal copyright claim for failure to plead sufficiently that the allegedly infringed copyrights were properly registered or preregistered, a necessary prerequisite to bringing suit for copyright infringement pursuant to 17 U.S.C. section 411(a). February Order, 234 F. Supp. 3d at 554-55. The Court found that Plaintiff had not plausibly alleged, either through attached documents or in the body of the Complaint, that the allegedly infringed designs were indeed subjects of the proffered registration certificates. Id. The Court provided Plaintiff with a 21-day window of time in which to make a motion for leave to amend the complaint, requiring that the motion be accompanied by a memorandum of law and a copy of the proposed amended complaint. Id. at 558. The February Order clearly provided that Plaintiff’s failure to make a timely motion, or to demonstrate that the amendment would not be futile, would result in dismissal of the action with prejudice. Id.Plaintiff did not proffer a proposed amended complaint within the period prescribed by the Court, but instead attempted to file a motion for reconsideration, or in the alternative leave to file an amended complaint, on February 27, 2017. (See Docket Entry No. 39.) The motion was not fully filed on the ECF system until May 10, 2017. (See Docket Entry No. 45.) By letter submission dated October 18, 2017, Plaintiff proffered for the first time images, described as “deposit copies,” of two of the allegedly registered watch designs that include the registration numbers corresponding to the appropriate registration certificates, claiming that counsel had received the images in May 2017. (Docket Entry No. 46.) Plaintiff’s attorney represented that “burgeoning attorney-client relations issues resulted in the delay in submitting the request for the deposit copies.” (Id. at 2.)The Court denied Plaintiff’s motion for reconsideration and leave to amend, concluding that Plaintiff had not demonstrated good cause, pursuant to Federal Rule of Civil Procedure 16, for Plaintiff’s failure to comply with the Court’s orders in a timely fashion. (Mem. Order, January 22, 2018, Docket Entry No. 51, at 7-8.) Specifically the Court found that Plaintiff had not been diligent in its prosecution of the case, failing to take advantage of its three opportunities to provide the requisite documentation to the Court and only proffering such documentation six months after the final deadline, and that allowing an amendment at that point in the litigation would prejudice the Defendants. (Id.)Defendants seek $35,729.83 in attorneys’ fees for their successful defense of this suit. (Dweck Supp. Aff., Docket Entry No. 69-1,10.1) Sara Bar, Plaintiff’s founder, has proffered a declaration that Plaintiff “is in an extremely difficult financial position,” has “lost several major clients,” and has shed seven of its eight employees. (Bar Aff., Docket Entry No. 66,
