Piccard v. Deedy

• Decision Date: 15 October 2021
• Docket Number: 1:21-cv-558-MLB
• Parties: Varujan L. Piccard, Plaintiff, v. Neil P. Deedy, Defendant
• Court: U.S. District Court — Northern District of Georgia

Varujan L. Piccard, Plaintiff, v. Neil P. Deedy, Defendant

No. 1:21-cv-558-MLB

United States District Court, N.D. Georgia, Atlanta Division

October 15, 2021

OPINION & ORDER

MICHAEL L. BROWN, UNITED STATES DISTRICT JUDGE.

Plaintiff Varujan Piccard sued Defendant Neil Deedy for copyright infringement, trademark infringement, publisher infringement and fraud. (Dkt. 1.) The parties filed fourteen motions. (Dkts. 8; 10; 23; 36; 38; 39; 48; 51; 54; 55; 62; 68; 72 73.)^[1] The Court addresses each.

I. Background

According to Plaintiff's allegations in the complaint, he hired Premier Graphics & Communications in November 2018 to print a book he had written entitled “The Book of Zhongli - The Way of the Warrior.”

(Dkt. 1 at 3.) Plaintiff alleges Defendant Deedy (Premier Graphic's CEO) offered to “give” Plaintiff an International Standard Book Number (“ISBN”) for the book. (Id. at 4.) Plaintiff declined, claimed doing so would violate ISBN Agency Policy. (Id.) Plaintiff provided his own ISBN, but Defendant nevertheless registered the book with a different ISBN and without telling Plaintiff it had done so. (Id.) Plaintiff says Defendant also registered Plaintiff's book by falsely claiming Atlanta Book Printing was the publisher. (Id.) He says Defendant registered the book while possessing electronic copies of it. (Id. at 5-6.) Finally, he claims Defendant marked their “false” ISBN as “Publication Cancelled” in the ISBN database. (Id. at 7.)

Plaintiff is the sole author and owner of all rights to the publication at issue. (Id. at 5.) The actual publisher of the book is Interior Solutions, whose trademark is registered by the U.S. Patent and Trademark Office and is owned by Plaintiff. (Id. at 6.)

On February 8, 2021, Plaintiff, proceeding pro se, filed his complaint, alleging copyright infringement, trademark infringement, publisher infringement, and fraud, naming only Defendant Deedy as a defendant. (Id. at 3.) On March 3, 2021, Defendant moved to dismiss.

(Dkt. 8.) That set off a flurry of motions by Plaintiff. He filed a motion for judgment on the pleadings on March 5, 2021 (Dkt. 10); a motion to pierce the corporate veil on March 24, 2021 (Dkt. 23); a motion for limited discovery on April 8, 2021 (Dkt. 36); a motion to compel Defendant to file initial disclosures on April 9, 2021 (Dkt. 38); a renewed motion for judgment on the pleadings on April 15, 2021 (Dkt. 39); a motion for joinder, or in the alternative, a motion for judgment on the pleadings on April 29, 2021 (Dkt. 48); a motion for judicial notice on May 5, 2021 (Dkt. 51); another motion for judicial notice on May 10, 2021 (Dkt. 54); a third motion for judicial notice on May 11, 2021 that is largely a duplicate of his second motion for judicial notice (Dkt. 55); another motion for judicial notice on May 24, 2021 (Dkt. 62); a motion for preliminary injunction on June 29, 2021 (Dkt. 68), and two motions to expedite consideration of the motion for preliminary injunction August 30, 2021. (Dkts. 72; 73.)

II. Motions for Judicial Notice

As stated, Plaintiff filed four motions for judicial notice. (Dkts. 51; 54; 55; 62.)^[2] Under Federal Rule of Evidence 201(b), a court make take judicial notice of a fact without formal proof when the fact is not subject to reasonable dispute because it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. Fed.R.Evid. 201(b). The Eleventh Circuit has urged caution in this regard because the judicial notice process “bypasses the safeguards which are involved with the usual process of proving facts by competent evidence in [a] district court.” Shahar v. Bowers, 120 F.3d 211, 214 (11th Cir. 1997). “[T]he kind of things about which courts ordinarily take judicial notice are (1) scientific facts: for instance, when does the sun rise or set; (2) matters of geography: for instance, what are the boundaries of a state; or (3) matters of political history: for instance, who was president in 1958.” Id. And “a court's authority to take judicial notice under Rule 201 is limited to notice of adjudicative facts, which are defined as the facts of the particular case . . . which relate to the parties. A court may thus refuse to take judicial notice of facts that are irrelevant to the proceeding.” Ballard v. Bank of Am. Corp., No. 1:13-cv-04011, 2014 WL 11970543, at *7 (N.D.Ga. Sept. 11, 2014) (internal citations and quotation marks omitted); United States v. Falcon, 957 F.Supp. 1572, 1584-85 (S.D. Fla. 1997) (because the Advisory Committee Notes to Rule 408 “define adjudicative facts as the facts of the particular case . . . which relate to the parties[, ] . . . a court may refuse to take judicial notice of facts that are irrelevant to the proceeding.”). “[L]egal arguments and conclusions subject to more than one interpretation are not the types of statements that are the proper subject of judicial notice.” Reynolds v. United States, No. CV 109-061, 2010 WL 1006253, at *4 (S.D. Ga. Mar. 17, 2010).

Plaintiff asks the Court to take judicial notice of sixteen facts. Defendant objects, in part or in full, to taking judicial notice of facts (1), (2), (3), (4), (5), (7), (8), (9), (10), (11), (12), (15), and (16). (Dkts. 57; 58; 59; 66.) The Court analyzes each:

(1) “The then Corporate entity and Defendant, Premier Copy, Inc. (Ref. 1:19-cv-4268), Corporate name was changed to Premier Graphics and Communication Inc. on February 17, 2020 at 03:59:05 PM; Effective Date February 10, 2020. . . . [Ref: Georgia Secretary of State].” (Dkt . 51 at 1-2.)

The Court takes judicial notice of the name change of Premier Copy, Inc. to Premier Graphics & Communications Inc., but will not take judicial notice of whether Premier Copy, Inc. was a defendant in 1:19-cv-4268-MLB.

(2) “The Defendant changed its corporate name from Premier Copy, Inc. to Premier Graphics and Communication Inc. in the middle of the adjudication of case number 1:19-cv-4268.” (Id. at 2.)

The Court will not take judicial notice of the fact “The Defendant changed its corporate name” since there is no indication Defendant Deedy, the only defendant in the case, changed his name.

(3) “Premier Copy, Inc. no longer exists and is therefore no longer a legal entity; and therefore the name Premier Copy, Inc. cannot, could not, and should not have been used, for it did not have any legal interest in either case as a defense.” (Id.)

The Court will not take judicial notice of this “fact, ” as it is really a legal argument and conclusion. See Reynolds, 2010 WL 1006253, at *4 (“[T]he Court finds that the ‘adjudicative facts' Petitioner seeks to have judicially noticed are more properly characterized as legal arguments and conclusions that he submits in support of his claims for relief.”).

(4) “The Defendant's Corporation, Premier Copy, Inc. (since 1995) changed its Corporate name to Premier Graphics and Communication Inc. prior to the Court's 1:19-cv-4268 Final Ruling, *and did so without notifying the Court.” (Dkt. 51 at 2.)

The Court takes judicial notice of the fact Premier Copy, Inc. changed its name before the Court's final ruling in 1:19-cv-4268 but will not take judicial notice of the rest of the fact. The rest of the fact is really about the lack of a fact. Plaintiff requests the Court take judicial notice of the fact that there was no notification, but that fact cannot be accurately and readily determined from sources whose accuracy cannot reasonably be questioned. Plaintiff is asking the Court to look at the entire universe of information, which the Court cannot do.

(5) “The Defendant continued to use the name ‘Premier Copy, Inc.' even though it knew it no longer existed and was not a legal entity (and) deliberately failed to notify the Court and the Plaintiff, and failed to correct the Docket in case number 1:19-cv-4268 and this current suit 1:21-cv-0558.” (Id.)

The Court will not take judicial notice of this fact. This “fact” includes legal arguments and information that cannot be accurately and readily determined from sources whose accuracy cannot reasonably be questioned. See Reynolds, 2010 WL 1006253, at *4 (“[T]he Court finds that the ‘adjudicative facts' Petitioner seeks to have judicially noticed are more properly characterized as legal arguments and conclusions that he submits in support of his claims for relief.”).

(6) “U.S. Government Corporation Law and Georgia Code Title 14 regarding Corporations, Partnerships, and Associations; Publication of Notice of Change of Name. The rules clearly state that “if a company or corporation is involved in (pending) legal litigation when its name is changed, it (or its counsel) must inform the parties, opposing counsel, and the court where the action is pending. By filing a document called Articles of Amendment, an LLC or corporation can request to change the name of the business. When approved, it means the company will operate under its new name. It requires the abandoning of the original business name entirely.”

(Dkt. 51 at 3.)

Federal courts can take judicial notice of the laws of every state in the Union. See Lamar v. Micou, 114 U.S. 218, 223 (1885). But the quoted passage is not supported by O.C.G.A. § 14-2-1006.1 (Plaintiff's citation). The Court thus will not take judicial notice of this fact.

(7) “[T]he Terms and Conditions (Rules and Regulations) of the United States ISBN Agency websites.” (Dkt. 51 at 4.)

The Court will not take judicial notice of this “fact” which is really unspecified content on a series of websites. The Court agrees with another court in this district's conclusion that this is not the kind of source whose accuracy cannot reasonably be questioned. As that court put...