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Shell v. Lautenschlager

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

October 31, 2017



          David A. Ruiz, United States Magistrate Judge.

         The 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.)

         Currently 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.


         Summary 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." Fed.

         R. Civ. 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)[1] 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 trial.

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 opposing party:

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.

         The 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.

         The 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).

         The 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)).

         Ordinarily, 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 waived.


         The 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).

         A 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 issue here.

         Not all 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 protectable.

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 345).

         In 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.

         A 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][3] (1996).)

         A 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).

         A. Previous Litigation

         In his 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[2]" (R. 40, ¶1, PageID #: 321, citing "Shell v. AFRA United State[s] District Court, District of Colorado, 09v00309;" see also R. 40, ¶ 87.)

         The 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.

         Reviewing 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.

         B. Parents' Guide to the System

         The 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, PageID#: 1408.)

         Shell asserts that she discovered the "Parents' Guide" on the website "" 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 "" 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.)

         Shell 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.)

         A party 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).

         Lautenschlager 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 at the URL and 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 at the URL the complete file was published and accessible at guide to the system-how to protect your children and rights from ...

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