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Kunkel v. Jasin

January 6, 2010


The opinion of the court was delivered by: Ditter, J.


This case comes before me on the plaintiff's motion for partial summary judgment pursuant to Federal Rule of Civil Procedure 56. There has been no discovery and the present issue is whether it should be allowed. For the reasons that follow, I will deny the plaintiff's motion without prejudice to his refiling it once discovery has been completed.

The parties are not new to this arena,*fn1 nor is the plaintiff's contention that he owns certain house plans and that the defendants have used them in violation of his copyrights. He re-asserts that same claim in this present matter. The defendants answered and filed fourteen affirmative defenses.

With the pleadings then closed and before any discovery had taken place, the plaintiff filed his present motion for partial summary judgment. First, he asserts that in awarding the defendants summary judgment in a prior case, the Honorable Paul S. Diamond made a factual finding that the architectural plans and designs in question here were owned by the plaintiff and that the defendants are therefore precluded from asserting to the contrary in this case. Second, the plaintiff contends that he should be awarded judgment as to each of the defendants' fourteen affirmative defenses because there is no evidence to support any of them.

The defendants answered his motion on the issue preclusion question and asserted a need for discovery. The plaintiff again requested summary judgment contending there was no need for discovery since the defendants' affirmative defenses could all have been supported by affidavit and that the defendants failed to provide an affidavit under Rule 56(f) detailing what discovery is needed and why it has not previously been obtained.

The rules governing a motion for summary judgment under Rule 56 are well-established. It should be granted if the moving party has shown that there is no genuine issue as to any material facts and he is entitled to judgment as a matter of law. All ambiguities and reasonable inferences must be viewed in light most favorable to the non-moving party. Once a motion for summary judgment has been properly made and supported, however, the non-moving party may not merely rely on its own pleadings, but must set out facts, by affidavit or otherwise, showing a genuine issue for trial. Under Rule 56(f), I may deny the motion or grant a continuance so that discovery may be completed by the parties, if the non-moving party specifies by affidavit the reasons why material facts cannot be presented.

I shall deal first with the plaintiff's issue preclusion contention.

In the prior proceeding to which the plaintiff refers, he sought damages and injunctive relief for the defendants' alleged infringement of the same copyrighted works that are the subject of this present litigation. The defendants' motion for summary judgment was granted because the plaintiff had concealed his purported ownership of the works during his previous bankruptcy action, the interests remained part of the bankruptcy estate, and therefore the real party in interest was the bankruptcy trustee.*fn2

In an opinion explaining why he was granting summary judgment for the defendants, Judge Diamond noted that he was required to view the facts in the light most favorable to Kunkel and afford to him every reasonable inference. Judge Diamond went on to say that while he was disregarding the plaintiff's allegations that lacked factual support, he was accepting as true all of Kunkel's other factual assertions.

Judge Diamond then did what he said he was going to do: he set forth Kunkel's recitation of the facts and explained why they showed the defendants were entitled to summary judgment.

Now Kunkel contends that Judge Diamond's accepting as true for the purposes of the defendants' summary judgment motion that the plaintiff was the author of the plans and owner of the copyrights that covered them was a factual finding. On that basis he maintains in this most recent suit that the defendants are precluded from contesting his ownership of these plans.

Kunkel is wrong on both counts. Judge Diamond did not resolve the ownership question and the defendants may raise it in this proceeding.

The plaintiff is proceeding pro se and I shall attribute to inexperience his issue preclusion claim.*fn3 Of course, it will be denied.

I now turn to Kunkel's claim that the defendants' response to his motion for summary judgment was not in the form specified by Rule 56(f) and supported by an affidavit. He is correct. The defendants filed a hybrid: it answered the plaintiff's motion point by point with a counter statement of facts, provided argument and citations, and a request for fees ...

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