Kindegartners Count, Inc. v. Demoulin
| Decision Date | 13 March 2003 |
| Docket Number | No. 00-4173-JAR.,No. 01-4017-JAR.,00-4173-JAR.,01-4017-JAR. |
| Citation | 249 F.Supp.2d 1233 |
| Parties | KINDERGARTNERS COUNT, INC., Plaintiff/Counterclaim Defendant, v. Donald F. DEMOULIN, Defendant/Counterclaim Plaintiff, and Telephone Pioneers of America, and Pioneers Foundation, Defendants, v. Vernie L. Wheeler, Counterclaim Defendant. Kindergartners Count, Inc., Plaintiff, v. Donald F. Demoulin, and Telephone Pioneers of America, Defendants |
| Court | U.S. District Court — District of Kansas |
Anne M. Kindling, Harold S. Youngentob, Nathan Daniel Leadstrom, Goodell, Stratton, Edmonds & Palmer, Topeka, KS, for Plaintiff.
David R. Barnard, John M. McFarland, Lathrop & Gage L.C., Todd E. Hilton, Stueve Helder Siegel LLP, Kansas City, MO, Evelyn Z. Wilson, J. Phillip Gragson, Wright, Henson, Somers, Sebelius, Clark & Baker, LLP, Topeka, KS, Joseph F. Marinelli, Jenner & Block, Chicago, IL, Kevin James Grauberger, Wright, Henson, Somers, Sebelius, Clark & Baker, LLP, Topeka, KS, Molly J. Moran, Richard P. Steinken, Thomas K. McQueen, Jenner & Block, Chicago, IL, Thomas E. Wright, Wright, Henson, Somers, Sebelius, Clark & Baker, LLP, Brian G. Boos, Gehrt & Roberts, Chartered, Topeka, KS, Topeka, KS, for Defendants.
Vernie L. Wheeler, Topeka, KS, Pro se.
MEMORANDUM ORDER AND OPIION MODIFYING ORDER DENING MOTIONS FOR SUMMARY JUDGMENT
On December 5, 2002, the Court held a hearing on the parties' respective motions, including several motions and cross-motions for summary judgment. The Court ruled that the motions for summary judgment were not in a posture for ruling at that time and directed the parties to submit agreed statements of threshold legal issues. An Omnibus Order (Doc. 434) was entered on December 16, 2002, denying the majority of the summary judgment issues, subject to the parties' submission of threshold legal issues. Not surprisingly, the parties were only able to agree on two issues, but submitted individual contentions nonetheless. The Court held a second hearing on these matters on February 19, 2003, at which time oral rulings were made and read into the record. For the reasons stated on the record, the Court has reviewed the submissions for any common grounds and finds that several threshold issues of law can be determined on summary judgment. This order supersedes the Omnibus Order entered December 16, 2002.
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." 1 The requirement of a "genuine" issue of fact means that the evidence is such that a reasonable jury could return a verdict for the nonmoving party.2 Essentially, the inquiry is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law."3
The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. This burden may be met by showing that there is a lack of evidence to support the nonmoving party's case.4 Once the moving party has properly supported its motion for summary judgment, the burden shifts to the nonmoving party to show that there is a genuine issue of material fact left for trial.5 "A party opposing a properly supported motion for summary judgment may not rest on mere allegations or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial."6 Therefore, the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment.7 The court must consider the record in the light most favorable to the nonmoving party.8
The court notes that summary judgment is not a "disfavored procedural shortcut"; rather, it is an important procedure "designed to secure the just, speedy and inexpensive determination of every action."9
The following facts are taken from the summary judgment record and are either stipulated, uncontroverted or viewed in the light most favorable to the non-movant's case. The Court ignores factual assertions that are immaterial, or not supported by affidavits and/or authenticated and admissible documents. The Court also disregards conclusory statements and statements that are conclusions of law rather than statements of fact.
Plaintiff Kindergartners Count, Inc. ("KCI") is the purported copyright owner of "I Like Me!" ("ILM book"), a personalized children's book, and the ILM Teacher's Guide.10 KCI entered into a Partnership Agreement with Telephone Pioneers of America ("TPA") on January 28, 1998. The Partnership Agreement identifies TPA as a "domestic fraternal society" under IRS 501(c)(10) and KCI as a "nonprofit exempt organization under IRS 501(c)(3)." The primary focus of the partnership was "local TPA units working with schools, and other interested community stakeholders in the United States, Canada and Mexico to distribute KCI's `I Like Me!' program."
The Partnership Agreement sets forth the respective responsibilities of KCI and TPA:
All parties mutually agree to:
1) Work jointly, as resources allow, in promoting the agreement to individuals and/or organizations that can have a positive influence in the program enrollment/distribution of the "I Like Me!" readers to school children and teachers guides for education professionals.
2) Work jointly in publicizing the partnership-issuing press releases and highlighting the TPA and "I Like Me!" program in internal and external publications....
3) Work jointly to connect schools and communities by building networks of home/school/community alliances via the "I Like Me!" program.
4) Work jointly to develop and publish an annual partnership communications and promotional activities plan which is reviewed and approved by the leadership of both organizations.
5) Work jointly to develop and keep current a partnership reference guide, training materials, and other partnership promotion materials as resources allow.
6) Work jointly to support the efforts of the local TPA units.
With regard to KCI's role, the Partnership Agreement states:
KCI is the owner and copy right holder of the "I Like Me!" reader and teachers guide. Any "I Like Me!" related product or service created by Pioneers will be approved by KCI prior to promotion or distribution, KCI will be responsible for any content changes to the materials. KCI will be responsible for the development of any new products under the "I Like Me!" program.
The Agreement stated the ultimate goal of the partnership was "to enroll every Kindergartner in the United States and Canada in the "I Like Me!" program which includes distribution of a personalized reader and teacher's guide." The Agreement set out established mutual volume goals, beginning with a goal of 60,000 program enrollments for the 1997-1998 school year, and progressing to a goal of 850,000 program enrollments for the 2001-2002 school year.
The Partnership Agreement was for an initial five (5) year period, renewable for an additional five (5) years, as follows: The initial partnership agreement will be for a period of five years. Renewal of the agreement will be by mutual consent of the parties and will be for a period of five years. The partnership can be dissolved with written notification of either party to the other within 60 days of July 30 each year.
KCI entered into a series of consulting agreements with Don DeMoulin ("DeMoulin"), a professor of Education at the University of Tennessee-Martin in Jackson, Tennessee ("UTM"). The first written Consulting Agreement was signed on August 19, 1997, and entered on October 1, 1997. There were no written contracts prior to this, but DeMoulin has filed a counterclaim against KCI based on prior oral agreements.
The October 1, 1997 Consulting Agreement provides, in part:
1. DeMoulin will provide educational, training, publication and research consulting services to KCI as they relate to the "I Like Me" program. DeMoulin will make himself available to provide up to 50 presentations to various groups as identified and requested by KCI. In addition, De Moulin will participate in all media interviews as requested by KCI.
2. DeMoulin will develop a 12 week study guide for use by classroom teachers as they implement the "I Like Me" program. KCI will produce and distribute the study guide as part of the "I Like Me" program. DeMoulin shall be responsible for all necessary revisions of the guide as requested by KCI.
On April 11, 1999, DeMoulin entered into a second Consulting Agreement with KCI that superseded the October 1, 1997 Agreement. The 1999 Agreement provided:
The Consultant hereby assigns to KCI any and all right, title and interest in and to the materials created by the Consultant under the prior Consulting Agreement. The Consultant agrees that all materials created for KCI under the prior Consulting Agreement qualify as "work for hire" under 17 U.S.C. 201(b), and thus, all intellectual property rights in and to that material are owned entirely by KCI.
The 1999 Consulting Agreement provided by its terms that it commenced on July 1, 1999 and ended June 30, 2000. The 1999 Consulting Agreement gave KCI rights and interests in matters relating to any part of the program developed by DeMoulin, providing:
6. Intellectual Property Rights. Notwithstanding the direct or indirect involvement of the Consultant in the design or development of the "I Like Me" program (the Program), KCI shall retain all right, title, and interest to intellectual property, including, but not limited to, copyright and trademark interests, relating to the Program; and, the Consultant hereby assigns to KCI, without additional...
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