United States District Court, S.D. Ohio, Eastern Division
Terence P. Kemp Magistrate Judge.
OPINION AND ORDER
A. SARGUS, JR. DISTRICT JUDGE
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
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.)
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. ¶
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.)
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.
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.
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).
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)).
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 ...