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Educational Impact, Inc. v. Scott

United States District Court, S.D. Ohio, Eastern Division

June 6, 2017


          Terence P. Kemp Magistrate Judge.



         This matter is before the Court on Plaintiff Educational Impact, Inc.'s Motion for Reconsideration of the Magistrate's March 22, 2017 Order granting Defendant Dr. Terrance M. Scott's Motion to Transfer Venue to the Western District of Kentucky. (ECF No. 30.) For the following reasons, Plaintiffs Motion for Reconsideration is DENHCD.


         Plaintiff, Educational Impact, Inc. ("EI") initiated this suit in September 2016 against Defendant Terrance M. Scott ("Dr. Scott") seeking a Declaratory Judgment affirming that Dr. Scott's threatened Lanham Act claim and related state law claims are without merit. (Complaint ("Compl.") ¶ 1, ECF No. 1 (citing 28 U.S.C. § 2201; Fed.R.Civ.P. 57).) EI is a Pennsylvania corporation that develops, markets, and sells professional development programs for teacher evaluation and training, with its principal place of business in Landsdale, Pennsylvania. (Id. ¶¶ 2, 7.) Dr. Scott "is one of the founders of the positive behavior interventions and support movements ("PBIS")" for dealing with challenging behaviors in schools. (Id. ¶ 10.) He resides in Louisville, Kentucky and is a Professor and the Director of the University of Louisville's Center for Instructional and Behavioral Research in Schools. (Dr. Scott Affidavit ¶ 3, Defendant's Motion to Transfer ("Def. Mot. to Transfer") Ex. 1, ECF No. 9-1.)

         On September 13, 2004, Dr. Scott contracted with the Ohio Department of Education ("ODE") to give a professional development presentation on PBIS to a group of teachers in Columbus, Ohio. As part of the contract, ODE allegedly requested that EI be able to film the presentation and had Dr. Scott sign a "Talent Release" giving EI permission to use or publish images from the film for any purpose. (Compl. Ex. B, ECF No. 1-2.) Years later, on June 25, 2010, Dr. Scott sent EI an email expressing his displeasure with its use of his name on their website, to which EI responded and reminded Dr. Scott of the Talent Release he had signed at the 2004 ODE event. (Compl. ¶ 16.)

         Dr. Scott alleges that he recently discovered EI had sold materials to the Jefferson County Kentucky Public Schools, where Louisville is located. (Def. Mot. to Transfer at 4.) The materials included the video of Dr. Scott's PBIS class from 2004. Dr. Scott learned about the sale after a representative from the school asked Dr. Scott to review the training program it had purchased from EI. (Defendant's Counterclaim ("Def. Countercl.") ¶ 7, ECF No. 10.) Dr. Scott also discovered that EI had a section on its website describing Dr. Scott as an expert for EI along with his image and bio from the University of Louisville faculty website. (Scott Aff. ¶ 10-11.) On July 5, 2016, Dr. Scott contacted EI to express his displeasure with El's use of his name and materials on its website, apparently not realizing it was the same company from his previous email in 2010. (Compl. Ex. C at 2, ECF No. 1-3.) Dr. Scott argues that he believed he had signed the Talent Release with ODE giving the school permission to use the video for in-house purposes only, and did not intend to grant unlimited rights to his likeness to a third party corporation. (Scott Aff. ¶ 8.)

         After EI reminded Dr. Scott about of the Talent Release again, Dr. Scott sent a letter to EI demanding that it cease and desist using his name and likeness and also threatened litigation. In response, EI filed this lawsuit on September 30, 2016, asking the Court to declare that EI has the right to use Dr. Scott's identity and material for its commercial use. Dr. Scott has filed counterclaims against EI for false endorsement under the Lanham Act, violation of his statutory right of publicity, misappropriation of name and likeness for commercial gain, unjust enrichment, and seeks a judgment declaring the Talent Release as unenforceable. (Def. CountercL¶ 26-55.)

         On November 8, 2016, Dr. Scott moved to transfer this case to the Western District of Kentucky, Louisville Division. (ECF No. 9.) On March 22, 2017, Magistrate Judge Kemp issued an Order granting Defendant's Motion to Transfer, concluding that transfer was appropriate given the relative burden and convenience to the parties and witnesses across various states. (See Order, ECF No. 29.) EI now moves for reconsideration of the Order on the grounds that the Magistrate Judge overlooked one of its arguments.


         As a preliminary matter, EI does not specifically cite to 28 U.S.C. § 636(b)(1)(A) or Rule 72(a) of the Federal Rules of Civil Procedure as the basis for its motion, nor does it specify the particular procedural mechanism under which it moves for reconsideration. The two cases it cites in support concern reconsideration of a district judge's own order based on the inherent authority of a district court to reconsider interlocutory orders before entry of a final judgment. See Sears v. Union Cent. Life Ins. Co., No. 1:04-CV-215, 2005 WL 5749546, at *2 (S.D. Ohio Nov. 28, 2005); Ferron v. Echostar Satellite, LLC, No. 2:06-CV-453, 2008 WL 341310, at *3 (S.D. Ohio Feb. 6, 2008). However, in his response in opposite, Dr. Scott views El's Motion as an objection to a non-dispositive order of a magistrate judge pursuant to 28 U.S.C. § 636(b)(1)(A). Because the Order granting Dr. Scott's Motion to Transfer was a non-dispositive order issued by a magistrate judge, this Court also views El's motion as an objection under § 636(b)(1)(A) and Rule 72(a).

         Federal Rule of Civil Procedure 72(a) provides the procedural mechanism through which a party may obtain review of orders issued by a magistrate judge on non-dispositive matters. The Rule provides that, in considering objections to such orders, the district judge "shall modify or set aside any portion of the magistrate judge's order found to be clearly erroneous or contrary to law." Fed.R.Civ.P. 72(a); see also 28 U.S.C. § 636(b)(1)(A). Thus, upon review of EFs objection to the Magistrate Judge's Order, and consistent with 28 U.S.C. § 636(b)(1)(A), this Court shall set aside any part of the Order found to be clearly erroneous or contrary to law. To establish that a Magistrate Judge's opinion is contrary to law, an aggrieved party must demonstrate that the conclusions ignore or contradict relevant precepts of law. Gandee v. Glaser, 785 F.Supp. 684, 686 (S.D. Ohio 1992). Considerable deference is given to the determinations of magistrate judges; however, with respect to legal conclusions, this Court must exercise independent judgment. Little Hocking Water Assn. v. E.I. DuPont de Nemours and Co., Case No. 2:09-cv-1081, 2015 WL 1105840, at *6 (S.D. Ohio Mar. 11, 2015) (citing In re Search Warrants Issued Aug. 29, 1994, 889 F.Supp. 296, 298 (S.D. Ohio 1995)).


         EFs sole objection is that the Magistrate Judge overlooked its first and lead argument that transfer to Kentucky would make several third-party witnesses in Ohio unavailable. Specifically, EI argues that potential third-party witnesses from ODE would not be subject to trial subpoenas in Louisville because they are not parties to the case, "meaning that the Plaintiff has no way to make them appear at trial more than 100 ...

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