Vance v. Latimer, 08-CV-10632-DT.

CourtUnited States District Courts. 6th Circuit. United States District Court (Eastern District of Michigan)
Citation648 F.Supp.2d 914
Docket NumberNo. 08-CV-10632-DT.,08-CV-10632-DT.
PartiesNancy Ellen VANCE, Plaintiff, v. Charles Odell LATIMER, Defendant.
Decision Date11 August 2009

Jeffrey P. Thennisch, Hattem A. Beydoun, Dobrusin and Thennisch, Pontiac, MI, for Plaintiff.

ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION REGARDING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT ON COUNTS VII, VIII AND IX OF THE VERIFIED COMPLAINT

GERALD E. ROSEN, Chief Judge.

This matter is presently before the Court on the July 6, 2009 Report and Recommendation of United States Magistrate Judge Paul J. Komives. In this R & R, the Magistrate Judge recommends that the Court grant Plaintiff's motion for summary judgment on her claims for declaratory judgment of ownership of pro se Defendant Charles Odell Latimer's music and musical works (Count VIII) and for a declaration that Plaintiff is entitled to 20% of Defendant's earnings from musical performances from September 29, 2005 and beyond (Count IX), but that the Court deny Plaintiff's request for an accounting (Count VII). No timely objections to the R & R have been filed.

Having reviewed and considered the Magistrate Judge's Report and Recommendation and the Court's entire file of this matter, the Court concurs in the Magistrate Judge's recommendation. Therefore,

IT IS HEREBY ORDERED that the Magistrate Judge's Report and Recommendation of July 6, 2009 [Dkt. # 14] is adopted by the Court.

IT IS FURTHER ORDERED that, for the reasons stated in the Report and Recommendation, Plaintiff's motion for (partial) summary judgment on Counts VII, VIII and IX [Dkt. # 11] is granted in part, and denied in part. Summary judgment is GRANTED in favor of Plaintiff on her claims in Counts VIII and IX for declaratory judgment of ownership of the Defendant's music and musical works and for a declaration that she is entitled to 20% of Defendant's earnings from musical performances since September 29, 2005. Summary judgment, however, is DENIED with respect to Plaintiff's Count VII claim for an accounting.

The Court also concurs in the Magistrate Judge's referral of this case to the Michigan Trial Lawyer's Pro Bono in anticipation of trial.

SO ORDERED.

REPORT AND RECOMMENDATION REGARDING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT OF COUNTS VII, VIII, AND IX OF THE VERIFIED COMPLAINT (Doc. Ent. 11)

PAUL J. KOMIVES, United States Magistrate Judge.

                                                           Table of Contents
                I.  RECOMMENDATION.......................................................................917
                II. REPORT ..............................................................................917
                    A. Background........................................................................917
                    B. The Complaint.....................................................................917
                    C. The Instant Motion................................................................918
                    D. Fed.R.Civ.P. 56...................................................................918
                    E. Analysis..........................................................................920
                       1. Defendant has admitted several of plaintiffs verified factual
                           allegations...................................................................920
                
                       2. Defendant has admitted some of plaintiffs verified claims in Count I
                            (Copyright Infringement), Count III (Unfair Trade Practices under
                            Mich. Comp. Laws § 445.903), and Count IV (Conversion)..................921
                       3. Plaintiff has shown that a genuine dispute does not exist as to any
                            material fact and that at trial she would be entitled to a directed
                            verdict......................................................................922
                          a. Count VIII (Declaratory judgment of ownership of the defendant's
                               music and musical works)..................................................922
                          b. Count IX (Declaratory relief under 28 U.S.C. § 2201, et seq
                               seeking a declaration that plaintiff is entitled to 20% of defendant's
                               earnings from musical performances from September 29
                               2005, and beyond).........................................................925
                          c. Count VII (Accounting)......................................................926
                       4. Defendant has not demonstrated that a triable issue of fact exists.............928
                       5. I have referred this case to the Michigan Trial Lawyers Association
                            pro bono program on defendant's behalf.......................................930
                III. NOTICE TO PARTIES REGARDING OBJECTIONS............. ................................932
                
I. RECOMMENDATION:

The Court should grant in part and deny in part plaintiff's motion for summary judgment of Counts VII, VIII, and IX of the verified complaint. Doc. Ent. 11. Specifically, the Court should conclude that plaintiff is entitled to summary judgment to the extent Count VIII seeks a declaration that she owns whatever rights defendant had in his music. The Court should also conclude that plaintiff is entitled to summary judgment to the extent Count IX seeks a declaration that she is entitled to 20% of defendant's earnings from musical performances from September 29, 2005 and beyond. Finally, the Court should conclude that plaintiff is not entitled to summary judgment on her claim for an accounting (Count VII).

II. REPORT:

A. Background

Charlie Latimer has a compact disc titled, "Through the Years," on which there are twenty (20) tracks. Doc. Ent. 1 at 41-42. Allegedly, the creation of this work was completed in 2005 and was first published on September 10, 2005. Doc. Ent. 1 at 4-5 ¶ 7, 45.

On September 29, 2005, Latimer signed a notarized statement that "Nancy Ellen Vance is the sole owner of all my music TO be used at her discretion. She also will receive 20% of all my earnings from musical performances." Doc. Ent. 1 at 35. On October 1, 2005, Latimer signed a notarized statement, which provided:

Nancy Ellen Vance is the sole owner of all my music, which may be used at her discretion. Nancy Ellen Vance will receive 20% of all my earnings from musical performances indefinitely. She will receive this portion before payment to accompaniment, taxes, or any other expense. Payment from performances will be separate from any other money owed to her by me.

Doc. Ent. 1 at 38. On Sunday, October 2, 2005, Latimer gave a musical performance at the Rochester Hills Public Library. Doc. Ent. 1 at 10 ¶ 24; Doc. Ent. 4 at 4 ¶ 24; Doc. Ent. 12 at 2-3.

B. The Complaint

On or about January 15, 2008, Vance applied for a copyright on "Charlie Latimer: Through The Years." Doc. Ent. 1 at 44-46. It does not yet appear that plaintiff's application has been assigned a registration number.

On February 13, 2008, Vance filed a verified complaint against Latimer based upon the Copyright Act (17 U.S.C. § 101 et seq.), the Declaratory Judgment Act (28 U.S.C. §§ 2201-2202) and the Lanham Act (15 U.S.C. §§ 1051-1141n). Doc. Ent. 1 ¶ 1, Doc. Ent. 1 at 32.

Plaintiff's complaint alleges (I) copyright infringement, (II) unfair competition under 15 U.S.C. § 1125(a), (III) unfair trade practices under Mich. Comp. Laws § 445.903, (IV) conversion, (V) breach of contract, (VI) common law unjust enrichment, (VII) accounting, (VIII) declaratory judgment of ownership of the defendant's music and musical works, and (IX) declaratory relief under 28 U.S.C. § 2201, et seq., seeking a declaration that plaintiff is entitled to 20% of defendant's earnings from musical performances from September 29, 2005, and beyond. Doc. Ent. 1. According to the "[r]eport on the filing or determination of an action or appeal regarding a copyright," the title of the work at issue is "Charlie Latimer: Through The Years[.]" Doc. Ent. 2 at 2.

Defendant filed an answer to the complaint on March 25, 2008. Doc. Ent. 4. On September 12, 2008, I entered a scheduling order setting the discovery deadline for January 12, 2009 and the dispositive motion cutoff for February 12, 2009. Doc. Ent. 9. Subsequently, the close of discovery was extended to February 12, 2009, and the dispositive motion cutoff was extended to March 12, 2009. Doc. Ent. 13.1

C. The Instant Motion

Judge Rosen has referred this case to me to conduct all pretrial matters. Doc. Ent. 5. Currently before the Court is plaintiff's February 11, 2009 motion for summary judgment regarding Counts VII, VIII and IX of the verified complaint. Doc. Ent. 11. Specifically, plaintiff argues that she (A) "is the copyright owner of defendant's musical works[,]" (B) "is entitled to 20% of defendant's earnings from musical performances from September 29, 2005 and beyond[,]" and (C) she "is entitled to a verified accounting of all of defendant's earnings from either the sale, licensing, or transfer of musical works as well as musical performances, from September 29, 2005 through the date of the Court's order[.]" Doc. Ent. 11 at 3.

Plaintiff filed a response on March 4, 2009. Doc. Ent. 12. In sum, defendant contends that the September 29, 2005 and October 1, 2005 agreements "were signed under extreme duress." Doc. Ent. 12 at 2.

D. Fed.R.Civ.P. 56

Under Rule 56, summary judgment should be granted "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." FED. R. CIV. P. 56(c). "An issue of fact is `genuine' if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Hedrick v. Western Reserve Care System, 355 F.3d 444, 451 (6th Cir.2004) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). "A fact is material only if its resolution will affect the outcome of the...

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