United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
B. SARIS CHIEF UNITED STATES DISTRICT JUDGE
Jonathan Monsarrat asks the Court to reconsider its December
21, 2017, order (Dkt. No. 79) allowing Defendant Brian
Zaiger's motion to dismiss. The order ruled that
Monsarrat's claim of copyright infringement was
time-barred under 17 U.S.C. § 507(b) because Monsarrat
knew of the conduct in question more than three years before
he filed his lawsuit. For the reasons that follow,
Monsarrat's motion to reconsider (Dkt. No. 98) is
Court assumes familiarity with the facts in its prior
opinion, Monsarrat v. Zaiger, No. 17-10356-PBS, 2017
WL 6544824 (D. Mass. Dec. 21, 2017). In short,
Monsarrat's copyright infringement claim centered on a
digitally altered photograph. The original photograph, taken
in connection with MIT's June 2000 graduation, depicted
Monsarrat in an MIT mascot costume alongside two young girls.
The altered photograph changed the letters "MIT" on
the mascot's T-shirt to "PDB, " and changed the
mascot from a beaver into a bear. Monsarrat alleged these
changes were made to associate him with "Pedobear,
" an Internet meme of a pedophilic bear. He also alleged
that, in 2008, Zaiger, under the username "Mantequilla,
" posted the altered photograph to the website
Encyclopedia Dramatica, which Zaiger owned and administered.
registered a copyright for the original photograph in 2011
and, around the same time, served Encyclopedia
Dramatica's registered agent with a takedown notice. The
page was taken down in October 2011, only to resurface in
2012. Subsequent takedown notices were unavailing.
filed his lawsuit in March 2017. About a month later,
"Mantequilla" took down the Encyclopedia Dramatica
page about Monsarrat and later removed the altered
December 2017, the Court allowed Zaiger's motion to
dismiss, ruling that the three-year statute of limitations in
the Copyright Act, 17 U.S.C. § 507(b), barred
Monsarrat's claim. Zaiger's counterclaim under 17
U.S.C. § 512(f) remained in the case. Judgment has not
entered on that counterclaim.
brings his motion under Fed.R.Civ.P. 54(b), which invokes a
court's inherent power to provide relief from
interlocutory decisions "as justice requires."
See Greene v. Union Mut. Life Ins. Co. of Am., 764
F.2d 19, 22-23 (1st Cir. 1985) (Breyer, J.) (comparing
"interests of justice" standard for reconsideration
of interlocutory orders with the "fairly heavy
burden" for reconsideration of final orders under Rule
60(b)). Generally, a court will not allow a motion to
reconsider an interlocutory order unless a movant can
demonstrate (1) an intervening change in the law, (2) the
discovery of new evidence not previously available, or (3) a
clear error of law in the first order. See Davis v.
Lehane, 89 F.Supp.2d 142, 147 (D. Mass. 2000).
mainly argues that the Court misapplied the so-called
discovery rule in determining that his claim was time-barred.
discovery rule provides that a copyright infringement claim
"accrues only when a plaintiff knows or has sufficient
reason to know of the conduct upon which the claim
is grounded." Warren Freedenfeld Assocs., Inc. v.
McTigue, 531 F.3d 38, 44 (1st Cir. 2008) (emphasis
added). Here, an attachment to Monsarrat's Amended
Complaint shows the allegedly infringing photograph posted on
Encyclopedia Dramatica on May 11, 2013. Because this exhibit
makes clear that Monsarrat knew of the alleged infringement