United States District Court, W.D. Washington, Seattle
L. ROBART United States District Judge.
the court are the parties' motions for judgment as a
matter of law, which the court took under advisement during
trial. (See Dkt. ## 264-67, 269, 271.); Fed.R.Civ.P.
50 advisory committee's note to 1991 amendment ("The
court may often wisely decline to rule on a motion for
judgment as a matter of law made at the close of the
evidence."); Runnings v. Ford Motor Co., 461
F.2d 1145, 1148 n.4 (9th Cir. 1972) ("This case once
again demonstrates the desirability of withholding action on
motions for directed verdicts and permitting the jury to
reach a verdict."). The jury returned its verdict on
February 9, 2017. (Verdict Form (Dkt. # 281) at 6.)
court has not ruled on the Rule 50(a) motions, which if
granted would overturn at least part of the jury's
verdict. (See id.) Some courts have held that
"a court's deferred consideration effectively
converts the Rule 50(a) motion into a post-verdict Rule 50(b)
motion." Op Art, Inc. v. B.I.G. Wholesalers,
Inc., No. 3:03 CV 0887 P, 2006 WL 3347911, at *1 (N.D.
Tex. Nov. 17, 2006); see also Merino v. Marchon,
Inc., No. 92 4662 WDK (JRX), 1994 WL 695826, at *5 (N.D.
Cal. Apr. 4, 1994). However, the court finds it more
appropriate to deny the Rule 50(a) motions as
moot. See Rose v. Barrett Twp., No.
3:09 CV 01561, 2014 WL 2039621, at *6 (M.D. Pa. May 9, 2014)
("Once the Court submits the matter to the jury, the
50(a) motion has effectively been mooted and no further
briefing is necessary, unless the movant seeks to renew the
Motion in accordance with 50(b)."); Asahi Glass Co.
v. Guardian Indus. Corp., 886 F.Supp.2d 369, 378 &
n.6 (D. Del. 2012) (dismissing as moot the parties' Rule
50(a) claims because the jury rendered its verdict and the
court took up the defendant's Rule 50(b) motion). The
court denies the parties' Rule 50(a) motions as moot,
without prejudice to re-raising the same legal questions in
motions under Rule 50(b). Any renewed motion must cite the
relevant law and reference specific evidence presented at
trial that supports the parties' respective positions.
The court takes no position on the merits of the motions.
court seeks briefing on an additional matter related to entry
of judgment. VHT has elected to receive statutory damages.
(2/10/17 Not. (Dkt. # 274).) VHT contends that it is entitled
to $8, 247, 300.00 in statutory damages for the 19, 312
infringed works that were eligible for statutory damages, and
$25, 028.92 in actual damages for the 8, 813 infringed works
that were not eligible for statutory damages. (Id.
at 1 (citing Verdict Form at 5-6).) However, the Copyright
Act is ambiguous as to whether a party may receive actual
damages for some of the works at issue and statutory damages
[T]he copyright owner may elect... to recover... an award of
statutory damages for all infringements involved in the
action, with respect to any one work, for which any one
infringer is liable individually, or for which any two or
more infringers are liable jointly and severally ...."
17 U.S.C. § 504(c)(1) (emphasis added). The emphasized
text could be read to require VHT to make an all-or-nothing
election between statutory and actual damages. See
id. On the other hand, the clause following the
emphasized text-"with respect to any one
work"-could be read to allow VHT to make that election
as to each work involved in this case. See Id.
VHT's notice tacitly embraces the latter reading but
provides no analysis or authority for this interpretation.
(See 2/10/17 Not. at 1.) The court seeks briefing on
this question before entering judgment.
court DIRECTS the parties to meet and confer on this issue
and submit a joint statement of the parties' positions no
later than February 21, 2017. If the parties disagree, the
parties must file opening briefs not to exceed four pages by
February 24, 2017, and response briefs not to exceed two
pages by March 1, 2017. The court will enter judgment after
resolving this legal question.
 Converting the Rule 50(a) motions into
Rule 50(b) motions without requiring the movants to renew the
motions would contravene the requirement that a movant
"file a renewed motion for judgment as a matter of
law" "[n]o later than 28 days after the entry of
judgment." Fed.R.Civ.P. 50(b); see Johnson v. N.Y,
N.H., & H.R. Co., 344 U.S. 48, 49 (1952) ("[I]n
the absence of a motion for judgment notwithstanding the
verdict made in the trial court within [the time allotted by
Rule 50(b)] after reception of a verdict the rule forbids the
trial judge ... to enter such a judgment.");
E.E.O.C. v. Go Daddy Software, Inc., 581 F.3d 951,
961 (9th Cir. 2009) ("If the judge denies or defers
ruling on the motion, and if the jury then returns a verdict
against the moving party, the party may renew its motion
under Rule 50(b)."); 9B Charles Alan Wright & Arthur
R. Miller, Federal Practice and Procedure §
2537 (3d ed. 1998) ("The motion must be made even though
the trial court expressly has reserved decision on the motion
at the close of the evidence."). Moreover, written
briefing would aid the court's analysis of the
 Motions for judgment notwithstanding
the verdict must be filed no later than 28 days after the
entry of judgment. See Fed. R. Civ. P. 50(b).
Accordingly, the court's determination of this legal
question and subsequent entry of judgment will not prejudice