United States District Court, N.D. Ohio, Eastern Division
MEMORANDUM AND ORDER
A. Ruiz, United States Magistrate Judge.
pro se plaintiff Suzanne Shell filed suit in this
court against pro se defendant Ray R.
Lautenschlager, as well as against several parties who have
since been dismissed. Shell filed her original complaint in
this court on August 31, 2015. (R. 1.) With leave of court,
Shell subsequently filed an amended complaint on January 19,
2016, alleging copyright infringement against the defendant
concerning three works with copyrights allegedly registered
and owned by Shell. (R. 15, Am. Compl.) Defendant
Lautenschlager filed an Answer on April 13, 2016. (R. 40.)
before the court is plaintiff Shell's Motion for Partial
Summary Judgment. (R. 138.) Although Shell's motion was
filed before the close of discovery, discovery has since
closed, and the dispositive motion deadline, which had been
extended to June 30, 2017, has passed. (R. 139, PageID #:
1536.) Shell did not supplement her motion, and no other
dispositive motions were filed. Therefore, defendant's
response to Shell's motion was due on June 1, 2017.
See, e.g., R. 143, PageID #: 1545. Lautenschlager
has not filed a brief in opposition to the motion, thus the
motion is ripe for decision.
judgment is appropriate where "the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to a judgment as a matter of law."
P. 56(a). Non-moving parties may rest neither upon the mere
allegations of their pleadings nor upon general allegations
that issues of fact may exist. See Bryant v. Commonwealth
of Kentucky, 490 F.2d 1273, 1275 (6th Cir. 1974). The
Supreme Court held that:
. . . Rule 56(c) mandates the entry of summary judgment,
after adequate time for discovery and upon motion, against a
party who fails to make a showing sufficient to establish the
existence of an element essential to that party's case,
and on which that party will bear the burden of proof at
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
The evidence need not be in a form admissible at trial in
order to avoid summary judgment, but Rule 56(e) requires the
to go beyond the pleadings and by [his] own affidavits, or by
the "depositions, answers to interrogatories, and
admissions on file, " designate "specific facts
showing that there is a genuine issue for trial."
Id. at 324.
Sixth Circuit in Street v. J.C Bradford & Co.,
886 F.2d 1472 (6th Cir. 1989), has interpreted
Celotex and two related cases, Anderson v.
Liberty Lobby, Inc., 477 U.S. 242 (1986), and
Matsushita Electric Industrial Co., Ltd. v. Zenith
Radio, 475 U.S. 574 (1986), as establishing a "new
era" of favorable regard for summary judgment motions.
Street points out that the movant has the initial
burden of showing "the absence of a genuine issue of
material fact" as to an essential element of the
non-movant's case. This burden may be met by pointing out
to the court that the respondent, having had sufficient
opportunity for discovery, has no evidence to support an
essential element of his or her case. Street, 886
F.2d at 1479.
respondent cannot rely on the hope that the trier of fact
will disbelieve the movant's denial of a disputed fact,
but must "present affirmative evidence in order to
defeat a properly supported motion for summary
judgment." Id. In ruling on a motion for
summary judgment, the court must construe the evidence, as
well as any inferences to be drawn from it, in the light most
favorable to the party opposing the motion. Kraus v.
Sobel Corrugated Containers, Inc., 915 F.2d 227, 229
(6th Cir. 1990).
standard is slightly different for a plaintiff-movant, who
would bear the burden of proof at trial. Shell must present
evidence that would entitle her to a directed verdict if that
evidence were not controverted at trial. If the defendant
responds to the motion with controverting evidence, which
demonstrates a genuine issue of material fact, Shell's
motion must be denied. However, if, after analyzing the
combined body of evidence presented by both parties, the
evidence is such that no reasonable jury could find in favor
of the defendant, then summary judgment will be entered on
behalf of the plaintiff-movant. Fitzpatrick v. City of
Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993). See
also Saab Cars USA, Inc. v. United States, 434 F.3d
1359, 1368-1369 (Fed. Cir. 2006); Fontenotv. Upjohn
Co., 780 F.2d 1190, 1194 (5th Cir. 1986) (movant must
establish all essential elements of claim or defense);
Orozco v. County of Yolo, 814 F.Supp. 885,
890 (E.D. Cal. 1993); McGrath v. City of
Philadelphia, 864 F.Supp. 466, 473 (E.D. Pa. 1994)
(citing National State Bank v. Federal Reserve Bank of
N.Y., 979 F.2d 1579, 1582(3dCir. 1992)).
documents submitted to support a summary judgment motion must
be attached to an affidavit that both identifies and
authenticates each document. Carmona v. Toledo, 215
F.3d 124, 131 (1st Cir. 2000) (citing cases); Wiley v.
United States, 20 F.3d 222, 226 (6th Cir. 1994);
Klein v. Manor Healthcare Corp., 19 F.3d 1433, 1994
WL 91786, at *6 (6th Cir. 1994) (TABLE, text in WESTLAW);
see generally Fed. R. Civ. P. 56(c)(1)(A), (c)(4).
The exhibits in support of the motion provided by the pro
se plaintiff here have not been authenticated in the
proper manner. See generally K. 138. However, when a
party fails to object to the evidentiary materials submitted
by the other party in support of its motion, any objections
to the court's consideration of the materials is waived.
Ford v. Securitas Sec. Servs. USA, Inc., No.
08-1262, 2009 WL 2031868, at *3-*4 (6th Cir. July 14, 2009)
(citing Wiley, 20 F.3d at 226; Powers v.
Hamilton County Pub. Defender Comm'n, 501 F.3d 592,
613 n. 3 (6th Cir.2007)). Lautenschlager has not filed an
opposition to the motion for partial summary judgment, nor
has he filed any other form of objection to Shell's
exhibits, thus any objections to her exhibits have been
amended complaint alleges three counts of copyright
infringement. See generally R. 15, Am.Compl., PageID
#: 186-192; see also R. 138, PageID #: 1406-1422. In
a copyright infringement action, the plaintiff must establish
"(1) ownership of a valid copyright; and (2) copying of
constituent elements of the work that are original."
Stromback v. New Line Cinema, 384 F.3d 283, 293 (6th
Cir. 2004) (quoting Feist Publ'ns, Inc. v. Rural Tel.
Serv. Co., 499 U.S. 340, 361 (1991)); Kohus v.
Mariol, 328 F.3d 848, 853 (6th Cir. 2003).
registration of copyright creates a presumption of the
copyright's validity. Lexmark Int'l, Inc. v.
Static Control Components, Inc., 387 F.3d 522, 534 (6th
Cir. 2004); Hi-Tech Video Prods., Inc. v. Capital
Cities/ABC, Inc., 58 F.3d 1093, 1095 (6th Cir. 1995)
(citing 17 U.S.C.A. § 410(c)). Although the presumption
may be rebutted, it is the burden of the party challenging
the copyright to do so. Hi-Tech Video, 58 F.3d at
1095. Lautenschlager has not filed an opposition to
Shell's motion, nor has he filed any other document which
rebuts the presumption of the validity of the copyrights at
copying amounts to copyright infringement: "it is a
constitutional requirement that a plaintiff bringing an
infringement claim must prove 'copying of constituent
elements of the work that are original.'"
Kohus, 328 F.3d at 853 (quoting Feist, 499
U.S. at 361). The Supreme Court has noted ". . .
originality is not a stringent standard; it does not require
that facts be presented in an innovative or surprising way.
It is equally true, however, that the selection and
arrangement of facts cannot be so mechanical or routine as to
require no creativity whatsoever. The standard of originality
is low, but it does exist." Feist, 499 U.S. at
362. Stated another way:
"To qualify for copyright protection, a work must be
original to its author. Original, as the term is used in
copyright, means only that the work was independently created
by the author (as opposed to copied from other works), and
that it possesses at least some minimal degree of creativity.
To be sure, the requisite level of creativity is extremely
low; even a slight amount will suffice." Second, only
the expression of ideas, not the ideas themselves, are
Ross, Brovins & Oehmke, P.C v. Lexis/Nexis, 348
F.Supp.2d 845, 853 (E.D. Mich. 2004), aff'd, 463
F.3d 478 (6th Cir. 2006) (quoting Feist, 499 U.S. at
assessing the infringement claim(s) then, the court must
first "filter out the unoriginal, unprotectible
elements" - elements that were not independently created
by the copyright holder, and that possess no minimal degree
of creativity. Stromback, 384 F.3d at 294 (quoting
Kohus, 328 F.3d at 855). The second step is "to
determine whether the allegedly infringing work is
substantially similar to the protectible elements of the
original." Kohus, 328 F.3d at 856.
general claim of copyright infringement is based on strict
liability. King Records, Inc. v. Bennett, 438
F.Supp.2d 812, 852 (M.D. Tenn. 2006). However, damages may be
increased if the plaintiff proves that the infringement was
willful. Princeton Univ. Press v. Michigan Document
Servs., Inc., 99 F.3d 1381, 1392 (6th Cir. 1996),
cert, denied, 520 U.S. 1156 (1997) (citing 17 U.S.C.
§ 504(c)(2)); King Records, 438 F.Supp.2d at
852. "Willful" means "with knowledge that the
defendant's conduct constitutes copyright
infringement." Princeton, 99 F.3d at 1392
(quoting 3 Nimmer on Copyright § 14.04[B]
defendant's continued infringement after notice of the
infringement is probative evidence of willfulness.
International Korw in Corp. v. Kowalczyk, 855 F.2d
375, 380-381 (7th Cir. 1988) (citing cases); Microsoft
Corp. v. McGee, 490 F.Supp.2d 874, 880 (S.D. Ohio 2007)
(citing cases); see also Ford Motor Co. v. Cross,
441 F.Supp.2d 837, 852 (E.D. Mich. 2006) (trademark).
Answer, Lautenschlager characterizes Shell's allegations
as "misleading and false claims." (R. 40, ¶1,
PageID #: 321.) Lautenschlager contends that "the issues
of ownership of these alleged documents was and has been
previously decided in Shell v. AFRA" (R.
40, ¶1, PageID #: 321, citing "Shell v.
AFRA United State[s] District Court, District of
Colorado, 09v00309;" see also R. 40, ¶
case which Lautenschlager cites involved "extensive
proceedings, " Shell v. Henderson, Civ. No.
09-CV-00309, 2014 WL 3716165, at *1 (D. Colo. July 28, 2014),
in a suit alleging copyright infringement and other claims
brought in the District of Colorado by Shell against several
defendants. See generally Shell v. American Family Rights
Ass 'n, 899 F.Supp.2d 1035 (D. Colo. 2012).
Lautenschlager does not cite the specific ruling or decision
which he alleges is dispositive of copyright ownership.
See generally R. 40, ¶1, PageID #: 321.
several decisions in that litigation sua sponte,
there is no indication that the Colorado district court
issued an adverse ruling on the merits as to Shell's
allegations that she held enforceable copyrights. See
generally Shell v. Swallow, No. 16-1150, 671 Fed.Appx.
1028 (10th Cir. Nov. 23, 2016); Shell v. Henderson,
No. 14-1330, 622 Fed.Appx. 730 (10th Cir. Aug. 7, 2015);
Shell v. Swallow, Civ. No. 09-CV-00309, 2016 WL
183631 (D. Colo. Jan. 15, 2016); Shell v. Henderson,
2014 WL 3716165; Shell v. AFRA, 899 F.Supp.2d 1035
(D. Colo. 2012). There is also no indication that
Lautenschlager was a party in any of those actions.
Id. Thus, this court cannot find that the issue of
copyright ownership has been previously adjudicated against
Shell. Lautenschlager's unsupported assertion is not
sufficient to rebut the presumption of the validity of the
copyrights at issue here.
Parents' Guide to the System
first count of copyright infringement concerns the alleged
infringement of a work entitled "Parents' Guide to
the System." (R. 15, Am.Compl., ¶¶ 84-87,
PageID #: 186-187.) Shell alleges that she registered the
original work, a collection of proprietary unpublished
documents which formed the basis of the derivative work
entitled "Parents' Guide to the System, " with
the U.S. Copyright Office on October 23, 2008, registration
number TXu001588498. (R. 15, ¶ 23, PageID #: 175;
see also R. 15, Exh. C, PageID #: 220-224; R. 138,
asserts that she discovered the "Parents'
Guide" on the website
"www.ohiofamilyrights.info" on August 9, 2015. (R
138, ¶ 34.a., PageID #: 1411; R. 15, ¶ 86, PageID
#: 186; see R. 138-3, Exh. 4-5, PageID #:
1461-1484.) Shell contends that Lautenschlager owned the
website "ohiofamilyrights.info" at the time of the
infringement and was the web master for that site. (R. 138,
PageID #: 1410.) In support of her assertion that
Lautenschlager owned the website, Shell references an email
stream that Lautenschlager incorporated into his Answer,
wherein he writes that "the person that you would need
to address about content on the Ohio Family Rights website
would be me..." (R. 138, PageID #: 1410 n.6; R. 40,
PageID #: 342, 345.)
also relies on uncontested requests for admissions. Shell
notes that she served Requests for Admissions on
Lautenschlager on May 28, 2016, and on December 20, 2016, and
that he did not respond to them, nor did he timely object to
them. (R. 138, ¶¶ 7-8, PageID #: 1406.)
must respond to each matter of which an admission is
requested within thirty (30) days after service of the
request, or else that matter is considered admitted.
Walsh v. McCain Foods Ltd., 81 F.3d 722, 726 (7th
Cir. 1996); Rudder v. Rashid, 68 F.Supp.2d 813, 816
(E.D. Mich. 1999); Chicago Dist. Council of Carpenters
Pension Fund v. P.M.Q.T., Inc., 169F.R.D. 336, 340-341
(N.D. Ill. 1996) (citing Fed.R.Civ.P. 36(a)). Unanswered
requests for admission are automatically deemed admitted
under Rule 36(a); no motion to establish or affirm the
admissions is required. Goodson v. Brennan, No.
16-5023, 2017 WL 1857270, at *2 (6th Cir. May 8, 2017);
American Tech. Corp. v. Mah, 174 F.R.D. 687, 689-690
(D. Nev. 1997). A district court is empowered to grant
summary judgment in a case in which requests for admissions
determine dispositive facts. Elie v. United States,
No. C81-923, 1982 WL 1595, at *2 (N.D. Ohio Jan. 27, 1982)
(citingMoosman v. Joseph P. Blitz, Inc., 358 F.2d
686 (2d Cir. 1966)). Matters that are deemed admitted because
of a party's failure to respond to a request for
admissions can form the basis for a grant of summary
judgment. Conlon v. United States, 474 F.3d616, 621
(9th Cir. 2007); Lovejoy v. Owens, 86F.3d 1156, 1996
WL 287261 (6th Cir. 1996) (TABLE, text in WESTLAW) (per
curiam); Rudder, 68 F.Supp.2d at 816; Chicago
Dist. Council, 169 F.R.D. at 340 (citing United
States v. Kasuboski, 834 F.2d 1345, 1350 (7th Cir.
1987)); E.E.O.C v. Baby Prod. Co., Inc., 89 F.R.D.
129, 131 (E.D. Mich. 1981).
failed to respond to the requests for admissions in a timely
manner, and thus the matters for which requests for
admissions were served are deemed admitted under Rule 36(a).
The court must then examine whether those admissions are
dispositive of the relevant issues in the motion for summary
judgment. The requests for admissions relevant to the first
claim are as follows:
9. The attached document labeled as Exhibit 4 is a true and
correct copy of selected content that was published as a link
by you on ohiofamilyrights.info at the URL
that this [sic] clicking on this link caused the user to
download a copy of the document labeled as Exhibit 5.
10. The attached document labeled as Exhibit 5 is a true and
correct copy of selected content that was published as a link
by you on ohiofamilyrights.info at the URL the complete file
was published and accessible at
www.ohiofamilyrights.info/cps/parents guide to the system-how
to protect your children and rights from ...