An Indianapolis attorney ordered to pay more than $150,000 in copyright infringement damages to another lawyer for using his Indianapolis skyline photo without permission claims in court that he never received notice of the suit against him.
Michael F.S. Patrick was ordered last month to pay McCordsville attorney Richard Bell the six-figure damages award, but Patrick has moved to set aside the judgment against him. Indiana Southern District Judge Tanya Walton Pratt found Patrick in default after he failed to file a responsive pleading to Bell’s suit, which alleged Patrick had used his copyrighted photo without permission on his law firm website, michaelpatricklaw.com.
Now, Patrick claims in a sworn affidavit he was never served notice of Bell’s suit against him. Bell sent a certified letter that was signed for by a real estate office receptionist who was temping at the office Patrick shares with other professionals, but she did not forward it to him, she swore in an affidavit. Because she rarely worked in the office where Patrick’s office was located, she said she was unaware that she wasn’t authorized to sign her name to accept certified mail, which included the summons for Patrick.
Pratt on Friday granted Bell more time to reply to Patrick’s motion to set aside the default judgment, but she denied his motion to depose Patrick and the receptionist. Pratt ruled their sworn affidavit testimony “is more than sufficient for Bell to prepare a response brief,” and that Bell hadn’t shown good cause to allow the depositions.
Patrick argued in a motion opposing an extension of time for Bell that Bell had called the receptionist on May 2, at which time she said she shared with him the facts that also were set out in her affidavit — that she has never worked for Patrick. “She stated that she did not perform tasks for Mr. Patrick. She informed Mr. Bell that she did not answer phones for him; she did not relay messages to him,” the motion says.
Patrick’s motion also alleges Bell asked the receptionist “to sign an affidavit for him stating that she gave the summons and complaint that arrived as certified mail to Mr. Patrick and she refused to do so.”
Bell said Wednesday that comment was inaccurate. However, he said even if the receptionist had signed the certified mail and failed to forward it to Patrick, case law would support his claim that notice of the suit had been served. "Service by mail is effective if someone other than the intended recipient signs the receipt," he said.
Bell's reply to Patrick's motion also alleges the Bell informed him of his intent to file suit by email in April 2016. The email indicates Patrick replied to the email by offering Bell proposed settlements of $2,000 or more, which Bell did not accept before the suit was filed.
Meanwhile, at least one Bell defendant is challenging his copyright on the Indianapolis photo, alleging it should be voided because it was a work made for hire for Bell’s former law firm, Cohen & Malad, P.C. Bell disputes the photo was a work made for hire.
Judge Richard Young in the U.S. Court for the Southern District of Indiana last week set a one-day bench trial for July 24 in that case, Bell v. Maloney, 1:16-cv-1193.