Moore v. Weinstein Co.
| Decision Date | 23 May 2012 |
| Docket Number | Case No. 3:09-CV-00166 |
| Parties | SAMUEL DAVID MOORE, JOYCE ELLEN MOORE, and THE SJM TRUST, Plaintiffs, v. THE WEINSTEIN COMPANY, LLC, doing business as DIMENSION FILMS; METRO- GOLDWYN-MAYER STUDIOS, INC.; GENIUS PRODUCTS, LLC; and CONCORD MUSIC GROUP, INC., Defendants, |
| Court | U.S. District Court — Middle District of Tennessee |
MEMORANDUM
Pending before the court are a series of related motions. The defendants filed a Motion for Summary Judgment (Docket No. 303), to which the plaintiffs filed a Response in opposition (Docket No. 340), and the defendants filed a Reply (Docket No. 358). In support of their Response, the plaintiffs rely upon the Expert Report of John Simson (Docket No. 342, Ex. 10), the Expert Report of Peter Benjaminson (id., Ex. 14), the Expert Declaration of Anne Chasser (id., Ex. 36), and the Declaration of Plaintiff Joyce Ellen Moore in rebuttal to the defendants' Motion for Summary Judgment (id., Ex. 1) ("Joyce Moore Rebuttal Declaration"). Concurrently with their Motion for Summary Judgment, the defendants filed a Motion to Exclude the Report and Testimony of Simson (Docket No. 298) and a Motion to Exclude the Report and Testimony of Benjaminson (Docket No. 300), to which the plaintiffs filed Responses in opposition (Docket Nos. 327 (Simson) and 326 (Benjaminson)), and the defendants filed Replies (Docket Nos. 335 (Simson) and 334 (Benjaminson)). Also, in response to the plaintiffs' opposition to the Motionfor Summary Judgment and concurrent with filing its Reply with respect thereto, the defendants filed a Motion to Strike the Chasser Declaration (Docket No. 354) and a Motion to Strike the Joyce Moore Rebuttal Declaration (Docket No. 355), to which the plaintiffs filed Responses in opposition (Docket Nos. 366 (Chasser) and 362 (Moore)), and the defendants filed Replies (Docket Nos. 372 (Chasser) and 369 (Moore)).
For the reasons stated herein, the Motion to Exclude the Simson Report and Testimony will be granted, the Motion to Exclude the Benjaminson Report and Testimony will be granted, the Motion to Exclude the Chasser Declaration will be granted in part and denied in part, the Motion to Strike the Joyce Moore Rebuttal Declaration will be granted in part and denied in part, and the Motion for Summary Judgment will be granted.
Plaintiff Samuel David Moore is a musical entertainer who is most famous for performing the songs "Soul Man" and "Hold On I'm Comin'" with Dave Prater, as part of the "Sam & Dave" soul music duo in the 1960's and 1970's. Although "Sam & Dave" ceased performing together by the early 1980's and Prater died in 1988, Sam Moore continues to perform and to make celebrity appearances, in which he is often referred to as "Sam Moore 'The Legendary Soul Man'" or some variation thereof.
Sam Moore claims to possess intellectual property rights in certain unregistered trademarks, including the terms "Soul Man," "Soul Men," "The Legendary Soul Man," and "The Original Soul Man" and "The Original Soul Men" (collectively, "Marks"). Sam Moore also asserts claims relative to his 1967 album "Sam & Dave Soul Men" and a 2008 documentaryconcerning Sam & Dave.
In 2008, defendant The Weinstein Company, LLC d/b/a Dimension Films ("TWC") released a feature film called Soul Men (hereinafter "Soul Men" or "Movie") starring Samuel L. Jackson and Bernie Mac. Pursuant to contractual agreements with TWC and/or its affiliates, defendant Metro-Goldwyn Mayer Studios, Inc. ("MGM") distributed Soul Men in theaters nationwide, defendant Genius Products, LLC ("Genius Products") has distributed a DVD version of the Movie, and Concord Music Group, Inc. ("Concord") created and distributes the Movie's soundtrack, entitled Soul Men The Original Motion Picture Soundtrack ("Soundtrack").
In this lawsuit, Sam Moore, his wife Joyce Ellen Moore, and The SJM Trust (collectively, "plaintiffs") broadly contend that the defendants violated their intellectual property, publicity, and privacy rights by producing, promoting, and/or distributing the Movie and the Soundtrack. The plaintiffs assert the following claims:
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On May 12, 2010, this court denied the defendants' Motion to Dismiss (Docket Nos. 112 (Memorandum) and 113 (Order)),1 after which the parties engaged in a protracted and contentious discovery process. Pursuant to this court's May 11, 2012 Memorandum and associated Order (Docket Nos. 373 and 374), the First Amended Complaint remains the operative complaint in the case, and the defendants are entitled to an adverse inference that the plaintiffs have never received income for or related to any purported trademarks, rights of publicity, or other rights asserted in this lawsuit.
In support of their Motion for Summary Judgment, the defendants filed a Memorandum of Law (Docket No. 306 (sealed) and 317 (redacted and unsealed)) ("Defs. SJ Mem."), a Declaration of Robb Harvey with attached exhibits (Docket No. 302), the Defendants' Statement of Undisputed Facts with 50 attached exhibits (Docket Nos. 308 (sealed) and 322 (unsealed)2 ) ("DSUF"), and a Notice of Filing that attached three unreported cases (Docket No. 309).
In opposition to the Motion for Summary Judgment, the plaintiffs filed a Memorandum of Law (Docket No. 340 (sealed)) ( ) and Plaintiffs' Responses to the DSUF with36 attached exhibits (Docket No. 342) ("PRDSUF").3 The exhibits to the PRDSUF include, inter alia: the Joyce Moore Rebuttal Declaration (id., Ex. 1); the expert reports of Simson and Benjaminson (id., Exs. 10 and 14 ()),4 which had been timely disclosed to defendants in discovery; and the Chasser Declaration (id., Ex 36 (at id., attachment Nos. 37 (Declaration) and 38-49 (exhibits to Declaration))), which purports to rebut certain facts relied upon and issues presented by the defendants in their Motion for Summary Judgment. In support of their Reply ("Defs. SJ Reply"), the defendants filed the Declaration of Samuel L. Jackson (Docket No. 353) and an additional Declaration of Robb S. Harvey (Docket No. 357) ("Harvey Reply Declaration").
The defendants have filed separate Motions to Exclude the reports and testimony of plaintiffs' experts Simson and Benjamin,5 a Motion to Strike the Chasser Declaration, and a Motion to Strike the Joyce Moore Rebuttal Declaration. Because the plaintiffs rely on all of these materials in support of their opposition to the Motion for Summary Judgment, the court must resolve the pending Motions to Exclude and Motions to Strike before considering theMotion for Summary Judgment.
Federal Rule of Evidence 702 provides as follows:
A witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise, if (a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods, and (d) the expert has applied the principles and methods to the facts of the case.
In Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), the Supreme Court identified four non-exclusive factors that may be helpful to the court in assessing the relevance and reliability of expert testimony, including (1) whether a theory or technique has been tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) the known or potential error rate and the existence and maintenance of standards controlling the theory or technique's operation; and (4) the extent to which a known technique or theory has gained general acceptance within a relevant scientific community. Id. at 593-94.
In its "gate-keeping" role, a trial court must evaluate the relevance and reliability of all expert testimony, whether the testimony offered is "scientific" or not. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 147, 119 S. Ct. 1167, 143 L. Ed. 2d 238 (1999). That said, the Daubert factors do not constitute a "definitive checklist or test." Id. at 150. Indeed, the court's fundamental objective is to generally evaluate, based on whatever factors are important to theparticular case, the relevancy and reliability of the testimony and not necessarily to explore factors that might not be relevant to a particular case, such as whether the expert's methods are subject to empirical testing. Id. at 151. That is, the court is to ensure that the proffered testimony is reliable and relevant and that the expert, whatever his field, "employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field." Id. at 152.
The proponent has the burden of establishing that the pertinent admissibility requirements have been meet by a preponderance of the evidence. Fed. R. Evid. 104; see also Pride v. Bic Corp., 218...
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