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Wilson v. National Bikers Roundup Inc.

United States District Court, D. South Carolina, Columbia Division

February 26, 2018

James A. Wilson, Plaintiff,
v.
National Bikers Roundup Inc., Columbia S.C. Roundup Committee, Rozell Nunn d/b/a R&R Enterprise and Rozell Nunn, individually, Albert Butler, and Sheldon Mickens, Defendants.

          REPORT AND RECOMMENDATION

          SHIVA V. HODGES, UNITED STATES MAGISTRATE JUDGE

         This matter comes before the court on the motions of James A. Wilson (“Plaintiff”) for: (1) default judgment against Albert Butler (“Butler”) [ECF No. 72]; and (2) summary judgment against Sheldon Mickens (“Mickens) [ECF No. 73]. All pretrial proceedings in this case were referred to the undersigned pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civ. Rule 73.02(B)(2)(e) (D.S.C.). Because the motions for summary judgment and default judgment are dispositive, this report and recommendation is entered for the district judge's consideration.

         For the reasons that follow, the undersigned recommends the district court grant the motions.

         I. Factual and Procedural Background

         Plaintiff initially filed this action against Rozell Nunn d/b/a R&R Enterprise (“R&R”) and in his individual capacity (“Nunn”), National Bikers Roundup, Inc. (“NBR”), and Columbia S.C. Roundup Committee (“CRC”)[1](together with Butler and Mickens, “Defendants”) on December 8, 2015, to recover damages arising from the sale at a motorcycle festival held in Darlington, South Carolina, on August 5, 2015 (“Festival”), of shirts that included infringements of Plaintiff's graphic designs. Compl. ¶¶ 10-30 (ECF No. 1). Specifically, Plaintiff asserts a copyright for a graphic design (the “Wilson Design”) that was used on the shirts without his permission. Id. ¶¶ 16, 25-26, 28-30; [ECF Nos. 1-1, 1-2]. Together with his complaint, Plaintiff submitted Registration Certificate No. VA 1-976-227 issued by the United States Copyright Office on October 28, 2015, for the Wilson Design (“Certificate”). [ECF No. 1-3].

         Plaintiff alleges Nunn was the owner and operator of R&R and was an integral part of organizing and planning the Festival, including having been involved in NBR's and CRC's process of approving items for Festival souvenirs. Id. ¶¶ 8, 18. Plaintiff states that, in preparation for the Festival, NBR and CRC sought a graphic design for Festival souvenir items, including for the sale of 7, 500 shirts, with an anticipated revenue of $120, 000. Id. ¶ 15; Wilson Aff. ¶¶ 3-5 (ECF No. 38-4). Plaintiff states he submitted the Wilson Design in a proposal to NBR and CRC and was informed that it had been selected for use on the souvenirs. Id. ¶¶ 16-19. Plaintiff states that NBR and CRC then reversed their position and told him that they would not need his services in producing the souvenir shirts or in using his design. Id. ¶¶ 19-21. Plaintiff alleges NBR and CRC nevertheless contracted with Nunn and R&R to produce and sell shirts at the Festival that included prominent elements of the Wilson Design. Id. ¶¶ 22-23; Answer of Nunn (ECF No. 16) (“I only printed what South Carolina Roundup Committee as [sic] to be printed.”).

         Plaintiff filed and served this lawsuit on CRC on December 17, 2015, and on NBR and R&R and Nunn on December 10, 2015. [ECF Nos. 8-11]. During motions briefing, Nunn alleged that Butler and Mickens actively participated in his acts of copyright infringement. Thereafter, Plaintiff filed an amended complaint on March 7, 2017 [ECF No. 51], adding Butler and Mickens as defendants. Proofs of service of the summons amended complaint on Butler and Mickens were filed [ECF Nos. 54 and 55], and after they failed to file an answer or otherwise appear, the Clerk entered default against them [ECF No. 58]. After the entry of default against Mickens, counsel appeared on his behalf and filed an answer and counterclaim [ECF No. 59, 60].

         Plaintiff now seeks default judgment pursuant to Fed.R.Civ.P. 55 against Butler [ECF No. 72] and summary judgment pursuant to Fed.R.Civ.P. 56 against Mickens [ECF No. 73]. In each motion, Plaintiff requests an award of statutory damages, attorneys' fees and costs, as well as a permanent injunction to prevent Butler and Mickens from further infringing his copyrights.

         On November 3, 2017, the court advised Butler of the default judgment procedures and the possible consequences if he failed to respond adequately to Plaintiff's motion by December 4, 2017. [ECF No. 74]. By mistake of the Clerk of Court, that order was mailed to a Ridgemoore Drive address and was returned as undeliverable. [ECF Nos. 75 and 76]. The order was then mailed to Butler's address on Winding Road and directed that he respond to Plaintiff's motion by January 3, 2018. [ECF Nos. 77 and 78]. On January 8, 2018, Butler filed a response [ECF No. 79], and on January 16, 2018, Plaintiff filed a reply [ECF No. 80].

         Despite representation by counsel, Mickens failed to file a response to the motion for summary judgment.

         Having considered the motions and the record in this case, the undersigned recommends that the court grant Plaintiff's motion for summary judgment against Butler and default judgment against Mickens.

         II. Discussion

         A. Summary Judgment Standard

         Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “[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. At the summary judgment stage, the court must view the evidence in the light most favorable to the non-moving party and draw all justifiable inferences in its favor. Id. at 255.

         The moving party has the burden of proving that summary judgment is appropriate. Once the moving party makes this showing, however, the opposing party may not rest upon mere allegations or denials, but rather must, by affidavits or other means permitted by the rules, set forth specific ...


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