The opinion of the court was delivered by: John A. Gorman United States Magistrate Judge
The parties have consented to have this case heard to judgment by a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c), and the District Judge has referred the case to me. This case was tried to a jury verdict. Now before the court are the parties' fully briefed post-trial motions (#138, 139, and 140) and the defendants' objections to the plaintiff's bill of costs (#149 and 150).
Custom Designs Services, Inc. was dismissed as a party defendant on July 13, 2004, pursuant to settlement with plaintiff and payment of $1007.20. Subsequently, the Counts III and IV were dismissed. The remaining counts of Francois against Schnack and the Ruch defendants, and the counterclaims of the defendants against Francois, were tried to a jury on October 2-10, 2006.
On three counts, the jury found in favor of Francois and awarded damages, as follows: breach of contract against Schnack Chiropractic Center Inc. ("Schnack"), $20,531; copyright infringement against Jack Ruch individually and Jack Ruch Quality Homes Inc. ("the Ruch defendants"), $25,531; and copyright infringement against Schnack, $20,531.
All other counts were unsuccessful, including the counterclaims against Francois. Francois, Schnack, and the Ruch defendants have now filed post-trial motions.
Francois has filed a motion (#138) for a new trial against Schnack on the amount of damages awarded on the federal copyright claim - specifically as to Francois' right to recover some or all of Schnack's post-infringement profits - and against the Ruch defendants on the tortious interference with contract claim. In addition, Francois seeks an amendment to the judgment granting him injunctive relief and prejudgment interest on the two copyright infringement verdicts.
The Ruch defendants have filed a motion (#139) for judgment as a matter of law on the verdicts for copyright infringement, or in the alternative for set-off pursuant to Fed.R.Civ.P. 59(e) or 60(b)(5).
Schnack has filed a motion (#140) for judgment as a matter of law on the copyright verdict, arguing that plaintiff failed to prove damages attributable to infringement and further failed to show a causal connection between the infringing conduct and the damages. As to the breach of contract claim, Schnack argues that plaintiff failed to prove definite and certain terms of a contract and asks the court to amend the judgment (or remit the damages) with respect to the damages that were awarded. Finally, Schnack asks the court to set off the amount of judgment by the amount of a settling party's payment.
Following entry of judgment, plaintiff filed a Bill of Costs in the amount of $5711.00. Defendants jointly object to the amount of the Bill of Costs, arguing that it is not properly supported with documentation and that it includes non-taxable items.
Francois seeks a new trial on two issues. The first is a question that the Court removed from the jury: whether the amount of damages recoverable from Schnack for copyright infringement should include profits attributable to the infringing conduct. According to Francois, the ruling excluding evidence of such profits and declining to submit that question to the jury was based on an error of law. The second issue as to which a new trial is sought is the tortious interference claim against the Ruch defendants. Francois asserts that the jury's verdict against him on that claim is inconsistent with the verdict in his favor on the copyright infringement claim against the Ruch defendants.
Motions for new trials are broadly governed by Fed.R.Civ.P. 59(a). In deciding such post-trial motions, the Court must consider "if the verdict is against the weight of the evidence, the damages are excessive, or if for other reasons the trial was not fair to the moving party." Winger v. Winger, 82 F.3d 140 (7th Cir. 1996), quoting McNabola v. Chicago Transit Authority, 10 F.3d 501, 516 (7th Cir. 1993). See also, Allison v. Ticor Title Ins. Co., 979 F.2d 1187, 1196 (7th cir. 1992); Cygnar v. City of Chicago, 865 F.2d 827, 835 (7th Cir. 1989).
In addition, any error of law, if prejudicial, is grounds for a new trial. Fed.R.Civ.P. 61 provides that errors in any ruling or order or in anything done or omitted is not grounds for a new trial unless "refusal to take such action appears to the court inconsistent with substantial justice." See, Colegrove v. Cameron Mach. Co., 172 F.Supp. 2d 611, 632 (W.D. Pa. 2001); Wilhelm v. Blue Bell, Inc., 773 F.2d 1429, 1433 (4th Cir. 1985).
Because the first issue on which Francois seeks a "new" trial is an issue removed from the jury by the Court's ruling, standards stated in cases considering jury verdicts that are against the weight of the evidence do not govern here. Although not explicitly stated, I read plaintiff's motion as arguing that it was legal error for the Court to have removed that issue from the jury. It is therefore plaintiff's burden to show that substantial justice requires a trial on the issue of damages stemming from Schnack's profits.
In ruling on Schnack's motion for summary judgment (and in clarifying the pertinent part of the ruling in a later order), this Court considered whether the question of Schnack's profits was one that should go to a jury. Those rulings stemmed from the provision of the Copyright Act that permits recovery of the infringer's profits "attributable to the infringement" not otherwise taken into account in computing actual damages. 17 U.S.C. § 504(b).
During discovery in this case, plaintiff served interrogatories and document requests as to Schnack's financial picture. Defendant objected and produced nothing. Plaintiff did not pursue court resolution of the objection or take any other step to preserve the issue. The question first arose when Schnack sought summary judgment on the infringement count because plaintiff had no evidence of damages. In denying that motion, the court commented first that plaintiff's conduct during discovery had in essence sandbagged the defendant into believing that plaintiff was not pursuing recovery for Schnack's profits. But because it was unknown at that time what evidence ...