Allen v. Cooper
| Decision Date | 18 August 2021 |
| Docket Number | 5:15-CV-627-BO |
| Court | U.S. District Court — Eastern District of North Carolina |
| Parties | FREDERICK L. ALLEN and NAUTILUS PRODUCTIONS, LLC, Plaintiffs, v. ROY A. COOPER, et ah, Defendants. |
This cause comes before the Court on plaintiffs' motion for reconsideration. DE 105. The appropriate responses and replies have been filed, and a hearing was held before the undersigned on February 16, 2021, at Raleigh, North Carolina. For the reasons discussed below, the motion for reconsideration is granted.
The shipwreck believed to be Queen Anne's Revenge, the former flagship of Edward Teach, more commonly known as the pirate Blackbeard, was discovered in 1996 off the coast of Beaufort, North Carolina. Since 1998, plaintiffs Frederick Allen and his production company, Nautilus Productions, have been the substantially exclusive underwater photographers of the shipwreck. During this time, plaintiffs have allegedly produced a substantial archive of video and still images showing the underwater shipwreck and the efforts of diving teams and archaeologists to recover various artifacts from the wreck. Allen registered thirteen copyrights in these materials with the U.S. Copyright Office each copyright covering a year's worth of footage.
In 2013, defendant began arguing that the State of North Carolina and its Department of Natural and Cultural Resources (DNCR) infringed, contributed to infringement, and induced infringement of Allen's registered copyrights by uploading Allen's video-footage to the Internet without Allen's consent. On October 15, 2013, plaintiffs, the State, and the DNCR entered into a written settlement agreement providing for payment to plaintiffs from the DNCR of $15, 000 for any copyrights it had infringed prior to that date. The agreement referred to some specific instances of infringement, but none of the parties admitted to any wrongdoing. The agreement also clarified preexisting agreements and divided plaintiffs' video and photographic documentation into two categories to clarify the parties' respective rights. The State and the DNCR paid plaintiffs the $15, 000 provided by the settlement on February 3, 2014.
Plaintiffs commenced this action on December 1, 2015, alleging that the State and the DNCR continued to infringe on plaintiffs' copyrights after entry of the 2013 settlement agreement. They further alleged that the State and the DNCR have published performed, and/or displayed plaintiffs video footage and that, in an effort to convert plaintiffs' copyright assets to state property without payment to plaintiff, defendants collectively wrote and obtained passage of an amendment to an existing North Carolina statute to convert copyrighted works of plaintiffs and others into public record. N.C. Gen. Stat. § 121 -25(b).
In their complaint and amended complaint, plaintiffs sought a declaratory judgment that § 121-25(b) is void and unenforceable because it is preempted by the Copyright Remedy Clarification Act (CRCA), 17 U.S.C. §§101 et seq., and violates the Takings and Due Process Clauses of the U.S. Constitution. U.S. Const, amends. V and XIV. Plaintiffs further alleged claims of copyright infringement and unconstitutional taking pursuant to 42 U.S.C. § 1983, as well as state law claims for unfair and deceptive trade practices and civil conspiracy. Defendants moved to dismiss plaintiffs' amended complaint, arguing that it is barred by the Eleventh Amendment, that the individual defendants sued in their individual capacities are protected by qualified and legislative immunity, that the complaint fails to state a plausible claim for relief, that plaintiffs lack standing to challenge § 121-25(B) as amended, and that this Court should abstain from issuing an opinion of first impression regarding North Carolina's public record statute. Fed.R.Civ.P. 12(b)(1)-(2), (6).
On March 23, 2017, this Court entered an order denying in part and granting in part defendants' motion to dismiss. The order allowed the claims for a declaratory judgment that § 121-25(b) is void and unenforceable and for copyright infringement to move forward upon finding that North Carolina's Eleventh Amendment immunity for those counts was validly abrogated by the CRCA. The order dismissed the remaining claims for unconstitutional taking pursuant to § 1983, unfair and deceptive trade practices, and civil conspiracy because of sovereign immunity. In dismissing the § 1983 claim, the Court relied on Hutto v. South Carolina Retirement System, 244 F.Supp.3d 536 (4th Cir. 2010), and found, "under Fourth Circuit precedent, that plaintiffs' takings claims brought under § 1983 are barred by the Eleventh Amendment when North Carolina courts are available for such a claim to be brought." Allen v. Cooper, 244 F.Supp.3d 525, 540 (E.D. N.C. Mar. 23, 2017) (citing Hutto, 773 F.3d at 552).
Defendants appealed this Court's March 23, 2017 order on April 21, 2017, and plaintiffs cross-appealed on May 5, 2017. This Court granted plaintiffs' motion to stay the case on May 11, 2017, pending a final appellate decision. On July 10, 2018, the Fourth Circuit reversed this Court's decision. To effect the Fourth Circuit's mandate, on August 24, 2018, this Court entered an order dismissing plaintiffs' claims against North Carolina, the DNCR, and the public officials acting in their official capacity without prejudice and dismissing the claims against the public officials in their individual capacities with prejudice. This Court granted plaintiffs' motion to stay on September 27, 2018, until after the U.S. Supreme Court ruled on plaintiffs' petition for certiorari, and the Supreme Court granted the writ of certiorari on June 3, 2019. On April 24, 2020, the Supreme Court affirmed the Fourth Circuit's finding that there was no abrogation of sovereign immunity based on Article I's Intellectual Property Clause or § 5 of the Fourteenth Amendment in this case.[1]
On September 4, 2020, plaintiffs filed the instant motion for reconsideration asking this Court to reconsider its 2017 order dismissing the claim for unconstitutional taking pursuant to § 1983. Plaintiffs claim that, although this Court relied on then-prevailing law at the time it dismissed plaintiffs' takings claim, precedent has been changed by the Supreme Court's decision in Knick v. Township of Scott, 139 S.Ct. 2162 (2019), dated June 21, 2019. According to plaintiffs, that change in the law constitutes a valid reason justifying reconsideration of this Court's previous order and reinstitution of the case. Plaintiffs also argue that, now that the Supreme Court has rejected the CRCA as a prophylactic abrogation statute, it is appropriate to consider plaintiffs' claim for case-by-case abrogation based on an actual violation of his constitutional rights under United States v. Georgia, 546 U.S. 151 (2006).
At the outset, this Court notes that plaintiffs have filed their motion pursuant to Rule 60 of the Federal Rules of Civil Procedure. Defendant has not objected to plaintiff moving pursuant to Rule 60. Under that rule, a court may relieve a party from a final order for a limited set of circumstances including mistake, fraud, and newly-discovered evidence. Fed.R.Civ.P. 60(b). In addition to the specific categories for relief listed, Rule 60(b)(6) allows for a relief for "any other reason that justifies relief." Id. "To obtain relief from a judgment under Rule 60(b), a moving party must first show (1) that the motion is timely, (2) that he has a meritorious claim or defense, and (3) that the opposing party will not suffer unfair prejudice if the judgment is set aside." United States v. Welsh, 879 F.3d 530, 533 (4th Cir. 2018). The movant bears the burden of showing timeliness. Moses v. Joyner, 815 F.3d 163, 166 (4th Cir. 2016). Under Rule 60(b)(6), the party must also show the existence of "extraordinary circumstances." Gonzalez v. Crosby, 545 U.S. 524, 535(2005).
However, Rule 60(b) is applicable only to final orders. Roberson v. Paul Smith, Inc., No. 5:07-CV-284-F. 2011 U.S. Dist. LEXIS 42978, at *5 (E.D. N.C. Apr. 20, 2011) . Final judgments adjudicate and resolve all claims as to all parties. See Benedict v. Hankook Tire Co., No. 3:17-cv-109, 2018 U.S. Dist. LEXIS 58616, at *5 (E.D. Va. Apr. 5, 2018); Moore v. Lightstorm Entm't, No. RWT-11-3644, 2013 U.S. Dist. LEXIS 112366, at *8 ().
In this case, the Court's order dismissed only some of the defendants and some of the claims. Since the order did not resolve all claims as to all parties, it was not a final order. See Quigley v. United States, 865 F.Supp.2d 685, 699 (D. Md. 2012) () (quoting Fed.R.Civ.P. 54). Rule 60(b) is not applicable. Rather than deny the motion because it cites to Rule 60(b), the Court will construe plaintiffs' Rule 60(b) motion as a Rule 54(b) motion to reconsider. Id. (citing Fayetteville Inv'rs, 936 F.2d at 1469-70).
Rule 54(b) governs "any order or decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties." Pursuant to this rule, ''[a]n interlocutory order is subject to reconsideration at any time prior to the entry of a final judgment." Fayetteville Inv'rs, 936 F.2d at 1469. '"[A] district court retains the power to reconsider and modify its its [sic]...
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