1:11-cv-00783
S.D.N.Y.Jan 13, 2015Background
- Effie Film, LLC produced a screenplay-based film and sued Gregory Murphy after he publicly accused Effie Film's screenwriter (Emma Thompson) of copyright infringement based on Murphy's play/screenplay The Countess.
- District court granted judgment on the pleadings for Effie Film, finding no infringement; the Second Circuit affirmed that ruling.
- Effie Film moved for and the court awarded attorneys’ fees and costs totaling $499,068.70 under 17 U.S.C. § 505, finding Murphy’s claims objectively unreasonable and his conduct threatened the film’s production/marketing.
- Murphy (pro se) appealed the fee award. Effie Film moved under Fed. R. App. P. 7 to require Murphy to post an appeal bond to secure payment of fees/costs on appeal.
- Murphy opposed, asserting inability to obtain or afford a bond and that requiring one would effectively deny him the right to appeal.
- The court considered factors (ability to post bond, risk of nonpayment, merits, bad faith) and ordered Murphy to post a $10,000 appeal bond by February 1, 2015.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether district court may require an appeal bond under Rule 7 | Rule 7 protects appellee from nonpayment; court should use its discretion to require security | Rule 7 cannot be used to bar a pro se appellant who lacks funds | Court may require a bond; district court has discretion to set security under Rule 7 (adsani standard applied) |
| Whether bond is warranted here given the prior fee award | Bond is warranted because appeal lacks merit and would increase unpaid judgment; plaintiff requested at least $125,000 | Requiring a large bond would effectively deny appeal; appellant cannot obtain bonding | Bond warranted but for a smaller amount than requested |
| Appropriate bond amount | Requested not less than $125,000 to cover fees and appellate costs | Appellant lacks assets and bonding firms refused; argues inability to pay | Court set bond at $10,000, balancing protection of appellee and appellant’s circumstances |
| Consideration of appellant’s financial ability, risk of nonpayment, merits, and bad faith | Plaintiff emphasized merits against appellant and risk of escalating unpaid judgment | Appellant emphasized inability to post bond and pro se status | Court evaluated all factors and required modest security rather than the full requested amount |
Key Cases Cited
- Effie Film, LLC v. Murphy, 932 F. Supp. 2d 538 (S.D.N.Y. 2013) (district court judgment that screenplay did not infringe and baseline for subsequent fee award)
- Effie Film, LLC v. Murphy, [citation="564 F. App'x 631"] (2d Cir. 2014) (Second Circuit affirmance of no-infringement ruling)
- Adsani v. Miller, 139 F.3d 67 (2d Cir. 1998) (district court has discretion under Rule 7 to require security to protect appellee from nonpayment)
- Berry v. Deutsche Bank Trust Co. Americas, 632 F. Supp. 2d 300 (S.D.N.Y.) (discussing Rule 7’s purpose and bond considerations)