Marty Fulgueira Elfenbein
How Judge Elfenbein decides
Patterns drawn from this judge's own signed orders. Every observation links to the order it came from.
What persuades
On a contested Rule 12(b)(6) motion she recommends granting in part with differentiated prejudice -- some counts dismissed without prejudice with leave to amend, others with prejudice, and the motion denied as to counts adequately pleaded.
“Judge Elfenbein issued a R&R recommending that Defendant's Motion be granted in part and denied in part. ... Defendant's Motion to Dismiss, ECF No. [47], is GRANTED IN PART and DENIED IN PART. Counts I and VI ... are DISMISSED WITHOUT PREJUDICE. ... Count VII ... is DISMISSED WITH PREJUDICE. ... DENIED to the extent Defendant seeks to dismiss Count III”
On default judgment, sworn facts and reliable arithmetic can establish damages without an evidentiary hearing. She independently checked the calculations and recommended the higher available statutory recovery while avoiding a double award.
“Plaintiff asserts that the record contains sufficient information to determine the damages award without an evidentiary hearing and provides reliable figures that are subject to a precise mathematical computation — a computation that the Court has itself verified by crunching the numbers. ... Plaintiff BE AWARDED $141,990.00 in damages”
A trademark-dilution claim needs evidence of widespread recognition among the general consuming public. Long use, registrations, and popularity within a music niche did not create a triable issue on fame.
“Even viewing the evidence in the light most favorable to Korta Records, there is insufficient proof to suggest that its Marks have achieved the level of widespread public recognition necessary for a dilution claim. ... summary judgment in Plaintiffs' favor is warranted.”
Cautions
At 28 U.S.C. 1915(e)(2) screening Elfenbein dismisses claims under statutes that create no private right of action with prejudice (amendment being futile), while dismissing frivolous or shotgun-pleaded claims without prejudice with leave to amend.
“Magistrate Judge Elfenbein recommends that the Court: (1) dismiss with prejudice Plaintiff's claims filed pursuant to: (1) 18 U.S.C. § 242; (2) 18 U.S.C. § 249; (3) 18 U.S.C § 1001; (4) 18 U.S.C § 1832; and (5) 28 U.S.C § 351; (2) dismiss the remaining claims without prejudice as the Complaint is frivolous and a shotgun pleading; and (3) grant Plaintiff's Motion for Leave to Proceed in forma pauperis. ... the R&R (ECF No. 8) is ADOPTED.”
A fee request following partial discovery success may fail when the opposing party's objections were substantially justified and neither side clearly prevailed. She treated that mixed result as a reason not to shift expenses.
“IC System's objections within Request for Production Nos. 8 and 9 were, in part, substantially justified ... neither party was a clear victor at the Hearing. ... the circumstances here in which Plaintiff only partially prevailed would make an award of expenses unjust. ... Accordingly, the Motion, ECF No. [51], is DENIED.”
For substantial fee applications, detailed market-rate evidence can support requested hourly rates, but block billing across unrelated tasks risks an across-the-board reduction even after a strong merits result.
“Because the billing records here in many instances do not allow the Court to identify the amount of time expended on particular tasks to determine their reasonableness, the Court will apply an across-the board cut. ... the Court finds that a 10% across-the-board reduction is appropriate”
Signed rulings
A grounded sample of orders signed by this judge, with the verbatim dispositive language.
“Judge Elfenbein issued her Report which recommended that Plaintiff's IFP Motion be granted, and that Plaintiff's Complaint be dismissed for failure to state a claim for which relief could be granted. ... The Report and Recommendation, [ECF No. 9], is ADOPTED in full; ... This action is DISMISSED without prejudice”
“Magistrate Judge Elfenbein recommends that the Court: (1) dismiss with prejudice Plaintiff's claims filed pursuant to: (1) 18 U.S.C. § 242; (2) 18 U.S.C. § 249; (3) 18 U.S.C § 1001; (4) 18 U.S.C § 1832; and (5) 28 U.S.C § 351; (2) dismiss the remaining claims without prejudice as the Complaint is frivolous and a shotgun pleading; and (3) grant Plaintiff's Motion for Leave to Proceed in forma pauperis. ... the R&R (ECF No. 8) is ADOPTED.”
“Judge Elfenbein issued a R&R recommending that Defendant's Motion be granted in part and denied in part. ... Defendant's Motion to Dismiss, ECF No. [47], is GRANTED IN PART and DENIED IN PART. Counts I and VI ... are DISMISSED WITHOUT PREJUDICE. ... Count VII ... is DISMISSED WITH PREJUDICE. ... DENIED to the extent Defendant seeks to dismiss Count III”
“Judge Elfenbein issued a report and recommendation ('R&R'), ECF No. [14], recommending that the Motion be granted. ... the Motion to Proceed in forma pauperis ... must be granted. However, because the Complaint fails to state a claim ... the Complaint must be dismissed. ... The Report and Recommendation, ECF No. [14], is ADOPTED. ... This case is DISMISSED WITHOUT PREJUDICE.”
“IC System's objections within Request for Production Nos. 8 and 9 were, in part, substantially justified ... neither party was a clear victor at the Hearing. ... the circumstances here in which Plaintiff only partially prevailed would make an award of expenses unjust. ... Accordingly, the Motion, ECF No. [51], is DENIED.”
“Defendant Diaz has shown good cause to vacate the Clerk's entry of default. ... I respectfully RECOMMEND that: 1. Defendant Diaz's Unopposed Motion to Vacate Default, ECF No. [39], be GRANTED; 2. The Clerk's Entry of Default against Defendant Diaz, ECF No. [32], be VACATED”
“Because default judgment cannot be entered without a valid entry of default, Plaintiffs' Motion for Default Judgment should be denied as moot. ... Plaintiffs' Motion for Default Judgment Against Defendant Diaz, ECF No. [35], be DENIED AS MOOT”
“I respectfully RECOMMEND that Plaintiff's Amended Motion for Default Judgment, ECF No. [28], be GRANTED ... A Final Default Judgment BE ENTERED as to Counts IV and V in favor of Plaintiff and against Defendants; ... Plaintiff BE AWARDED $141,990.00 in damages”
“I respectfully RECOMMEND that Plaintiffs/Counter-Defendants ... Motion for Summary Judgment ... be GRANTED in part and DENIED in part as follows: 1. As to Counts I and II, I recommend that summary judgment be DENIED; and 2. As to Count III, I recommend that summary judgment be GRANTED.”
“Plaintiffs' Motion to Exclude the Expert Testimony of Defendants' Expert Leslie Zigel on all Non-Damages Topics, ECF No. [82], is GRANTED.”
“Defendants' Motion to Strike Plaintiffs' Improper and Untimely Expert Report by Plaintiffs' Handwriting Expert, ECF No. [86], is GRANTED”
“Defendants' Motion to Strike Plaintiffs' Improper and Untimely Expert Report on Venezuelan Law, ECF No. [119], is DENIED”
“Defendants' Request for Judicial Notice, ECF No. [88], is GRANTED.”
“Plaintiffs' Motion for Attorney's Fees, ECF No. [310], is GRANTED in part and DENIED in part. The Court AWARDS Plaintiffs $763,320.10 in attorney's fees.”
Put Judge Elfenbein's record to work
Ezel drafts and answers grounded in this exact profile: how Judge Elfenbein actually rules, not a generic AI guess.
Opens in Ezel Pro. Every answer is grounded in Judge Elfenbein's own signed orders and cites them.