Page:Nealy v. Atlantic Recording (Certification Order).pdf/3

 accrual purposes. The Second Circuit adopted this position in Sohm v. Scholastic Inc., 959 F.3d 39 (2d Cir. 2020)—the only Circuit Court, post-Petrella, to address the issue. Plaintiffs, in contrast, urge the Court to adopt the Ninth Circuit’s pre-Petrella holding in Polar Bear Productions, Inc. v. Timex Corp., 384 F.3d 700 (9th Cir. 2004), which Plaintiffs contend was not affected by Petrella. See Starz Entm’t, LLC v. MGM Domestic Television Distrib., LLC, No. 20-04085, 2021 WL 566500 (C.D. Cal. Jan. 5, 2021). Both the Ninth Circuit in Polar Bear pre-Petrella and the district court in Starz Entertainment post-Petrella rejected the three-year damages limitation in cases where the discovery rule was applicable. While the Court disagrees with Plaintiffs, it finds there to be sufficient difference in the case law to warrant review pursuant to section 1292(b).

All the elements having been met, the issue of the three-year lookback period for Plaintiffs’ recoverable damages in this copyright action is ripe and appropriate for appellate review.



Additionally, pursuant to Fed R. Civ. P. 54(b), the Court hereby certifies the Final Judgment in favor of Atlantic Recording Corporation (“Atlantic”) [ECF No. 257] as a final judgment and determines that there is no just reason to delay the appeal thereof. In determining whether an order is certifiable under Rule 54(b), the district court must engage in a two-step analysis. ''Commodores Ent. Corp. v. McClary'', 879 F.3d 1114, 1127 (11th Cir. 2018). First, the district court “must decide whether the order is both ‘final’ and a ‘judgment.’” Id. Second, the district court must find “that there is no just reason for delay in permitting the parties to appeal its decision immediately.” Id. (quotation omitted).

The summary judgment ruling in favor of Atlantic determined that Plaintiffs could not support their claim of ownership over the musical works registered in the name of Music Specialist