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Boehm v. Martin

United States District Court, W.D. Wisconsin

November 8, 2017

SCOTT BOEHM and DAVID STLUKA, Plaintiffs,
v.
NICHOLAS MARTIN, et al., Defendants.

          OPINION & ORDER

          JAMES D. PETERSON, District Judge

         On September 27, 2017, the court issued an order on the parties' cross-motions for summary judgment, concluding that claim preclusion bars any claim of infringement against the Zimprich joint tortfeasors based on infringing copies made before January 16, 2015. See Dkt. 727. In the wake of that order, the parties have filed several motions. The court will address each in turn.

         A. Plaintiffs' motion for reconsideration

         Plaintiffs move for reconsideration of the September 27 order. Dkt. 744. They contend that the court erred in its application of claim preclusion to their claims. They move under Federal Rules of Civil Procedure 54(b) and 60(b). The court will grant a motion under Rule 54(b) only when necessary “to correct manifest errors of law or fact or to present newly discovered evidence.” Woods v. Resnick, 725 F.Supp.2d 809, 827-28 (W.D. Wis. 2010) (quoting Rothwell Cotton Co. v. Rosenthal & Co., 827 F.2d 246, 251 (7th Cir. 1987)). Rule 54(b) “does not provide a vehicle for a party to undo its own procedural failures, and it certainly does not allow a party to introduce new evidence or advance arguments that could and should have been presented to the district court prior to the judgment.” Id. at 828 (quoting United States v. Resnick, 594 F.3d 562, 568 (7th Cir. 2010)). Rule 60(b) provides for relief from “a final judgment, order, or proceeding” on many grounds, including mistake and “any other reason that justifies relief.” “[R]elief under Rule 60(b) is proper only under extraordinary circumstances.” Hill v. Rios, 722 F.3d 937, 938 (7th Cir. 2013).

         Plaintiffs challenge three aspects of the court's decision on the application of claim preclusion. Each of plaintiffs' contentions could and should have been presented to the court at summary judgment; plaintiffs offer no excuse for not doing so. The court will deny plaintiffs' motion for this reason. And even if plaintiffs had advanced these contentions at summary judgment, they wouldn't have succeeded for reasons briefly addressed below.

         Plaintiffs contend that the court erred in concluding that plaintiffs could have brought claims against the joint-tortfeasor defendants in Boehm I. They could not have done so, they argue, because “the Zimpriches failed to disclose the identity of any downstream resellers until after Boehm I was dismissed.” Dkt. 745, at 5. A copyright claim accrues when the injured party discovers, or reasonably should have discovered, the infringement. See Gaiman v. McFarlane, 360 F.3d 644, 653 (7th Cir. 2004). Even if plaintiffs did not discover the Zimprich joint tortfeasors' infringement until after Boehm I was dismissed, they have not shown that they couldn't reasonably have done so. They say that the Zimpriches “committed intentional and egregious discovery abuses, ” Dkt. 745, at 6, but they offer no evidence to support this assertion, and they never moved to compel the Zimpriches' discovery responses in Boehm I.

         Plaintiffs also contend that the court erred in concluding that the joint-tortfeasor defendants were in privity with the Zimpriches. They argue that the Zimpriches' interests weren't aligned with the joint tortfeasors' because the joint tortfeasors would have sought indemnification from the Zimpriches. But that's exactly why the joint tortfeasors are in privity with the Zimpriches. By resolving all claims against the joint tortfeasors in the settlement agreement, the Zimpriches ensured that they would not be liable to the joint tortfeasors in the future. The fact that the joint tortfeasors have not sought indemnification from the Zimpriches only indicates that the Zimpriches' plan worked.

         Finally, plaintiffs contend that the court erred in concluding that the continued display, sale, or distribution of previously made copies is not a new wrong giving rise to new claims post-dating the Boehm I judgment. They cite a handful of Seventh Circuit cases that, they argue, hold “that res judicata does not apply in situations of continued wrongful acts, ” Dkt. 745, at 7, and proffer policy arguments in support. The issue where one infringement ends and another begins for purposes of claim preclusion has not been resolved by the Seventh Circuit. The court carefully considered the issue and relevant case law and drew the line at copies made after the Boehm I judgment. Even if plaintiffs had included these new citations and policy arguments in their summary judgment briefing, the court's conclusion would remain the same.

         B. Plaintiffs' Rule 56(f) response

         In its September 27 order, the court identified several issues to resolve before trial through judgment independent of the motion under Rule 56(f). It also ordered plaintiffs to “identify by defendant and image each viable infringement claim that they intend to take to trial” and notified plaintiffs that they “may proceed on only those claims at trial.” Dkt. 727, at 40. Plaintiffs have responded. Dkt. 736. The court will address each issue in turn.

         The first issue is Gonnering's, Wredberg's, and Wein's infringement of photos for which plaintiffs have adduced only vague descriptions of sports photos in these defendants' emails. In the September 27 order, the court explained, “The written descriptions of some of these photos could refer to plaintiffs' photos (e.g., one email asks for “2 clay matthews framed pics, ” and Boehm owns copyright in a photo of Clay Matthews), but they could also refer to other photos in which plaintiffs do not own copyright.” Dkt. 727, at 28-29. In response, plaintiffs adduce evidence that they claim shows infringement by Wein: (1) Wein previously worked for Legends, where he handled the printing of canvases and other products; (2) Wein downloaded photos from Getty; and (3) Wein distributed photos to Waukesha Sportscards, which was in partnership with the Zimpriches and Gameday Sports. But none of this evidence shows that Wein actually infringed plaintiffs' copyright. Wein's association with people who have infringed plaintiffs' copyright is not evidence that Wein infringed plaintiffs' copyright. As for Gonnering and Wredberg, plaintiffs concede that they have no additional evidence of infringement. They argue that judgment independent of the motion is nonetheless improper because “absolute certainty is not required at the summary judgment stage.” Dkt. 736 at 2. That's true-what's required is an evidentiary showing “sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden at trial.” Mid Am. Title Co. v. Kirk, 59 F.3d 719, 721 (7th Cir. 1995) (quoting Tatalovich v. City of Superior, 904 F.2d 1135, 1139 (7th Cir. 1990)). Plaintiffs have the burden of proving infringement at trial, and they have not adduced evidence to establish infringement of the photos that they claim are referred to in emails sent by Wein, Gonnering, and Wredberg. So the court will enter judgment in those defendants' favor on this issue. Because plaintiffs do not identify any claim against Wein other than ones based on the email descriptions, the court will dismiss Wein and his business, Beyond Studio Publishing LLC, from the case.

         The second issue is Gonnering's willfulness. In the September 27 order, the court explained, “Plaintiffs argue that Gonnering was willfully blind to the infringing nature of photos he bought from Wein because he did not question Wein about the legitimacy of the photos. But this amounts to negligence at most, and plaintiffs have not shown that any of the photos Gonnering requested from Wein were actually infringing. The mere fact that Gonnering is in the sports memorabilia business does not, without more, allow for a finding of willfulness.” Dkt. 727, at 29. In response, plaintiffs cite several cases that they argue show that “such recklessness is evidence of willfulness in the copyright context.” Dkt. 736, at 4. The court is confident in its conclusion that Gonnering's failure to question Wein about the legitimacy of photos that may not have been infringing is not evidence of willful infringement. The court invited plaintiffs to show “through citation to the record that there is a genuine dispute of material fact” precluding summary judgment on the issue of Gonnering's willfulness, not to make legal arguments. Dkt. 727, at 40. Plaintiffs have not adduced any evidence of Gonnering's willfulness, so the court will enter judgment independent of the motion in Gonnering's favor on this issue.

         The third issue is Thomason's infringement of the White/Favre photo. In the September 27 order, the court explained, “Plaintiffs submit evidence that Thomason possessed the White/Favre photo, but they do not present any evidence that Thomason sold, distributed, displayed, or otherwise infringed on plaintiffs' copyright in the White/Favre Photo.” Dkt. 727, at 35. In response, plaintiffs adduce Thomason's photo of Brett Favre signing a copy of the White/Favre photo, Dkt. 498-85, at 14, and a “Top Products” list from Thomason that includes a product labeled “Brett Favre & Reggie White.” Dkt. 498-75, at 4. The “Top Products” list indicates that it is “Sorted by Qty Sold, ” and the “Brett Favre & Reggie White” product is listed 128 out of 319. Id. at 1, 4. A reasonable juror could conclude that the “Brett Favre & Reggie White” product featured the White/Favre photo and that Thomason sold it, or at least publicly displayed it while offering it for sale. So the court will not grant judgment in Thomason's favor on this claim of infringement, and it will proceed to trial.

         Finally, plaintiffs list the infringement claims that they intend to bring to trial. See Dkts. 736-1 through 736-5. The court accepts these lists with the understanding that plaintiffs may not proceed to trial on claims on which the court is entering judgment under Rule 56(f). One final comment on this point. Plaintiffs indicate that they intend to bring infringement claims against Thomason concerning three photos of A.J. Hawk and three photos of Jay Cutler. See Dkt. 736-4. Neither party moved for summary judgment on claims concerning these photos, so it's unclear what evidence plaintiffs have to support them. But one of plaintiffs' earlier filings lists Thomason's “Top Products” list as evidence of infringement-specifically, the description “AJ Hawk Action Photo” is adduced as evidence of infringement of three different Hawk photos and the description “Jay Cutler Ready to Pass … 16x20” is adduced as evidence of infringement of three different Cutler photos. Dkt. ...


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