United States District Court, D. South Carolina, Charleston Division
C. NORTON UNITED STATES DISTRICT JUDGE.
matter is before the court on defendants Antler Road LLC,
Crescent Homes SC, LLC, Park Investors, LLC, and Edward M.
Terry's (“defendants”) motion for partial
summary judgment, ECF No. 84, motion in limine, ECF No. 98,
and motion to bifurcate, ECF No. 104; defendants Antler Road
LLC, Park Investors, LLC, and Edward M. Terry's
(“Baker Plantation defendants”) motion for
summary judgment, ECF No. 101; defendant Crescent Homes SC,
LLC's (“Crescent Homes”) motion for summary
judgment, ECF No. 103; and plaintiff Sinclair and Associates
of Greenville, LLC's (“Sinclair”) motion for
sanctions, ECF No. 117. For the reasons stated below, the
court denies defendants' motion for partial summary
judgment, motion in limine, and motion to bifurcate. Further,
it denies Baker Plantation defendants' motion for summary
judgment, denies Crescent Homes's motion for summary
judgment, and grants Sinclair's motion for sanctions.
is a design firm engaged in the business of providing
engineering, land surveying, and project management services,
with particular expertise in the area of pool design and
engineering. Compl. ¶¶ 5, 7. In or around 2004,
Sinclair contracted with Summerville Homes, LLC
(“Summerville Homes”), the then-owner of the
Baker Plantation subdivision in North Charleston, South
Carolina, to prepare civil engineering and architectural
plans and technical drawings for a pool and amenities center
at Baker Plantation (the “Works”). Id.
¶¶ 31, 32. Sinclair then prepared and sealed the
Works, and licensed the Works to Summerville Homes.
Id. ¶¶ 33, 40. According to Sinclair, this
license granted a non-transferable, limited right to use the
Works in connection with Summerville Homes's construction
of the amenities center and pool at Baker Plantation.
Id. ¶¶ 39-41. However, Sinclair never sold
the Works or any interest therein to any party. Id.
Homes never began construction on the pool and amenities
center, but instead, conveyed the Baker Plantation property
to defendant CresCom Bank (“CresCom”) via a deed
in lieu of foreclosure. Id. ¶¶ 47, 48.
Around the time of this transaction, CresCom somehow obtained
a copy of the Works. Id. ¶ 49. CresCom
subsequently conveyed the Baker Plantation property and the
Works to defendant Antler Road, LLC (“Antler
Road”). Id. ¶¶ 57, 58, 61. In
December 2011, defendant Jamin Hujik (“Hujik”),
the vice president of CresCom, and Edward M. Terry
(“Terry”), the manager of Antler Road and
president of Crescent Homes SC, LLC (“Crescent
Homes”), each asked Sinclair whether it would be
willing to release its copyrights in the Works. Id.
¶¶ 12, 14, 64-67, 76-79. Sinclair maintains that on
both occasions it stated that it would be willing to do so in
exchange for payment, but none of the defendants ever
accepted this offer. Id. ¶¶ 65, 77-79. In
fact, Terry personally rejected the offer on December 29,
2011, stating that the Works were not worth the amount
Sinclair requested. Id. ¶ 79.
to Sinclair, Antler Road subsequently used the Works to
construct the pool and amenities center at Baker Plantation
despite never having paid for the Works. Id.
¶¶ 81, 82. After purchasing the Baker Plantation
property from Antler Road, Crescent Homes also used the Works
in this manner. Id. ¶¶ 83, 84, 91. At some
point, either Antler Road or Crescent Homes provided
defendants Park Investors, LLC (“Park Investors”)
and Robert E. Sample (“Sample”) with copies of
certain portions of the Works, which Park Investors used to
construct the amenities center and Sample used to create
derivative plans for the pool. Id. ¶¶
95-110. Sample's derivative plans were later used to
obtain a construction permit for the pool from the South
Carolina Department of Health and Environmental Control
(“DHEC”). Id. ¶ 112. Sinclair
claims that at all times relevant to this action, the various
defendants were aware that either Antler Road or Crescent
Homes planned to use the Works in this manner and that
neither Antler Road nor Crescent Homes had the right to so
use the Works. Id. ¶¶ 62, 68-76, 80, 85,
90, 91, 99-101, 106-109. Crescent Homes now markets the Baker
Plantation subdivision using the pool and amenities center,
id. ¶ 117, and all defendants have profited
from their use or conveyance of the Works, id.
February 17, 2016, Sinclair filed the instant action bringing
claims for direct copyright infringement, contributory
copyright infringement, conversion, and violation of the
South Carolina Unfair Trade Practices Act, SC Code
§§ 39-5-10, et seq.
(“SCUTPA”). On November 17, 2016, the court
dismissed Sinclair's claims for violation of SCUTPA,
leaving only its state law conversion claim and its federal
claims under the Copyright Act. On June 2, 2017, defendants
filed a motion for partial summary judgment, ECF No. 84, to
which Sinclair responded on June 16, 2017, ECF No. 92. On
June 30, 2017, defendants filed a motion in limine, ECF No.
98, to which Sinclair responded on July 14, 2017. On August
1, 2017, the Baker Plantation defendants filed a motion for
summary judgment, ECF No. 101, to which Sinclair responded on
August 15, 2017, ECF No. 109. On August 1, 2017, defendant
Crescent Homes filed a motion for summary judgment, ECF No.
103, to which Sinclair responded on August 15, 2017, ECF No.
110. On August 1, 2017, defendants filed an amended motion to
bifurcate, ECF No. 104, to which Sinclair responded on August
15, 2017, ECF No. 111. On September 22, 2017, Sinclair filed
a motion for sanctions, ECF No. 117, to which Terry responded
on October 6, 2017, ECF No. 121, and Sinclair replied on
October 13, 2017, ECF No. 122. The motions have been fully
briefed and are now ripe for the court's review.
Motion for Summary Judgment
judgment shall be granted “if the pleadings, the
discovery and disclosure materials on file, and any
affidavits show that there is no genuine dispute as to any
material fact and that the movant is entitled to judgment as
a matter of law.” Fed.R.Civ.P. 56(c). Rule 56(c) of the
Federal Rules of Civil Procedure requires that the district
court enter judgment against a party who, ‘after
adequate time for discovery . . . fails to make a showing
sufficient to establish the existence of an element essential
to that party's case, and on which that party will bear
the burden of proof at trial.'” Stone v.
Liberty Mut. Ins. Co., 105 F.3d 188, 190 (4th Cir. 1997)
(quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986)). “By its very terms, this standard provides
that the mere existence of some alleged factual dispute
between the parties will not defeat an otherwise properly
supported motion for summary judgment; the requirement is
that there be no genuine issue of material fact.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247-48 (1986). “Only disputes over facts that might
affect the outcome of the suit under the governing law will
properly preclude the entry of summary judgment.”
Id. at 248. “[S]ummary judgment will not lie
if the dispute about a material fact is ‘genuine, '
that is, if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Id.
the summary judgment stage the judge's function is not
himself to weigh the evidence and determine the truth of the
matter but to determine whether there is a genuine issue for
trial.” Id. at 249. When the party moving for
summary judgment does not bear the ultimate burden of
persuasion at trial, it may discharge its burden by
demonstrating to the court that there is an absence of
evidence to support the non-moving party's case.
Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
The non-movant must then “make a showing sufficient to
establish the existence of an element essential to that
party's case, and on which that party will bear the
burden of proof at trial.” Id. at 322.
reasonable inferences are to be drawn in favor of the
nonmoving party. Anderson, 477 U.S. at 255,
Webster v. U.S. Dep't of Agric., 685 F.3d 411,
421 (4th Cir. 2012). However, to defeat summary judgment, the
nonmoving party must rely on more than conclusory
allegations, mere speculation, the building of one inference
upon another, or the mere existence of a scintilla of
evidence. See Anderson, 477 U.S. at 252;
Stone, 105 F.3d at 191. Rather, “a party
opposing a properly supported motion for summary judgment . .
. must ‘set forth specific facts showing that there is
a genuine issue for trial.'” Bouchat, 346
F.3d at 522 (quoting Fed.R.Civ.P. 56(e) (2002) (amended
2010)). If the adverse party fails to provide evidence
establishing that the fact-finder could reasonably decide in
his favor, then summary judgment shall be entered
“regardless of ‘[a]ny proof or evidentiary
requirements imposed by the substantive law.'”
Id. (quoting Anderson, 477 U.S. at 248).
Motion in Limine
purpose of a motion in limine is to obtain a preliminary
ruling on the admissibility of a particular evidentiary
matter. Luce v. United States, 469 U.S. 38, 40 n.2
(1984). A court will exclude evidence on a motion in limine
only if the evidence is “clearly inadmissible for any
purpose.” Hall v. Sterling Park Dist., 2012 WL
1050302, at *2 (N.D. Ill. Mar. 28, 2012).
Motion for Sanctions
Rule of Civil Procedure 37(b)(2) provides that “[i]f a
party or a party's officer, director, or managing agent -
or a witness designated under Rule 30(b)(6) or 31(a)(4) -
fails to obey an order to provide or permit discovery,
including an order under Rule 26(f), 35, or 37(a), the court
where the action is pending may issue further just
orders.” Such orders may include:
(i) directing that the matters embraced in the order or other
designated facts be taken as established for purposes of the
action, as the prevailing party claims;
(ii) prohibiting the disobedient party from supporting or
opposing designated claims or defenses, or from introducing
designated matters in evidence;
(iii) striking pleadings in whole or in part;
(iv) staying further proceedings until the order is obeyed;
(v) dismissing the action or proceeding in whole or in part;
(vi) rendering a default judgment against the disobedient
(vii) treating as contempt of court the failure to obey any
order except an order to submit to a physical or ...