United States District Court, D. South Carolina, Columbia Division
James A. Wilson, Plaintiff,
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
V. HODGES, UNITED STATES MAGISTRATE JUDGE
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
reasons that follow, the undersigned recommends the district
court grant the motions.
Factual and Procedural Background
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”)(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].
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
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].
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.
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].
representation by counsel, Mickens failed to file a response
to the motion for summary judgment.
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.
Summary Judgment Standard
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.
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 ...