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Attachment 1


BUL 4310

Assignment 1: Case Notes

IRAC Analysis

HABITAT II CONDOMINIUM, INC., a Florida not-for-profit corporation, Appellant, v.

Derrick KERR, an individual, and Beverly J. Amie, an individual, Appellees.

Facts: About May 14, 2004, defendant Beverly Amie transferred her condominium unit to defendant Derrick Kerr, without providing the Association with the proposed Contract

of Sale as established in the Article 15 of the Condominium Declaration. The

Association’s complaint sought an injunction requiring Kerr to transfer the property to

the Association in the same terms and conditions of his purchase or, as alternative, the

Association requested the court to void the transfer of the property and the require

Beverly Amie to offer the property to the Association on those same terms and the

complaint also sought the amount of $ 35 000.

Procedural History: The Association’s complaint sought an injunction requiring Kerr to transfer the property to the Association in the same terms and conditions of his

purchase or, as alternative, the Association requested the court to void the transfer of

the property and the require Beverly Amie to offer the property to the Association on

those same terms and the complaint also sought the amount of $ 35 000. Defendant

Kerr moved to dismiss the action for failure to comply with the arbitration provision of

section 718.1255(4), Florida Statutes (2005). The Association filed a written response

claiming that this action involved an issue of "title" to the condominium unit and, hence,

was not arbitrable under the arbitration statute. The granting of a motion to dismiss is

reviewed do novo. In considering a motion to dismiss for failure to state a cause of

action, the court is limited to the four corners of the complaint, the allegations of which

must be taken as true, defeating defendants' main argument that notice of the sale was

given to the Association in accordance with the Declaration. The Court dismissed the

action and the Association appealed to the Fourth District Court of Appeal

Issue: The main issue in this appeal is whether this case involves a dispute subject to arbitration pursuant to Florida Statute Section 718.1255.

Rule: The Association cites several arbitration decisions holding that where the Association seeks to void the transfer of a unit to a new owner, the disagreement

primarily involves title to the unit, thus making the case non-arbitrable. In Florida Statute

§ 718.1255(1), Fla. Stat. (2005) is stated that “Dispute” does not include any

disagreement that primarily involves: title to any unit or common element.

Analysis: The court considered whether this case falls within the statutory exclusion that states that "Dispute" does not include any disagreement that primarily involves: title

to any unit or common element… § 718.1255(1), Fla. Stat. (2005). Since the

disagreement primarily involves title of the unit and this case does not involve a dispute,

defendant Beverly Amie failed to comply with the requirements of the Association’s

Declaration of Condominium. the matter is not subject to arbitration.

Conclusion: This case does not involve a dispute, subject to arbitration. Thus the trial court improperly dismissed it and the appellate court reversed and remanded the case

to the trial court for further proceedings. so the transfer of the unit was void due to the

breach of the article 15 of the Association’s Declaration of Condominium.

  • HABITAT II CONDOMINIUM, INC., a Florida not-for-profit corporation, Appellant, v. Derrick KERR, an individual, and Beverly J. Amie, an individual, Appellees.
  • HABITAT II CONDOMINIUM, INC., a Florida not-for-profit corporation, Appellant, v. Derrick KERR, an individual, and Beverly J. Amie, an individual, Appellees.

Attachment 2


Stark ex rel. Jacobsen v. Ford Motor Co., 365 N.C. 468 (2012)

723 S.E.2d 753, Prod.Liab.Rep. (CCH) P 18,830

© 2020 Thomson Reuters. No claim to original U.S. Government Works.

365 N.C. 468

Supreme Court of North Carolina.

Cheyenne Saleena STARK, a Minor, and Cody Brandon Stark, a Minor, by their Guardian ad Litem, Nicole JACOBSEN

v.

FORD MOTOR COMPANY, a Delaware Corporation.

No. 313PA10.

|

April 13, 2012.

Synopsis

Background: Products liability action was brought against automobile manufacturer on behalf on child passengers who sustained injuries during automobile accident. The Superior Court, Mecklenburg County, Forrest D. Bridges, J., entered judgment on jury verdict for manufacturer, plus costs. Guardian for passengers appealed, and manufacturer cross-appealed. The Court of Appeals, 204 N.C.App. 1, 693 S.E.2d 253,reversed and remanded in part, based on determination that affirmative defense of alteration or modification of product did not apply because passenger’s father who placed shoulder restraint behind passenger’s chest was not “party” to litigation. Review was granted.

 

[Holding:] The Supreme Court, Newby, J., held that modification of shoulder restraint was affirmative defense to products liability action against manufacturer, regardless of whether father was party to litigation.

 

Reversed and remanded.

 

Hudson, J., filed opinion concurring in part and dissenting in part, in which Timmons-Goodson, J., joined.

 

West Headnotes (7)

[1]

Appeal and Error Statutory or legislative law

Whether a statute has been properly interpreted is a legal question, which the appellate court reviews de novo.

[2]

Products Liability Lapse of time or change in condition

Products Liability Seat belts and occupant restraint systems

Automobile’s seat belt restraint system was modified or altered by “party” other than manufacturer after automobile left manufacturer’s control when passenger’s father placed shoulder restraint behind passenger’s chest, and thus, modification was affirmative defense to products liability action against manufacturer based on allegedly defective seatbelt restraint system, regardless of whether father was party to litigation. West’s N.C.G.S.A. § 99B–3.

[3]

Statutes Undefined terms

Statutes Dictionaries

Undefined words in a statute are accorded their ordinary meaning, for which the court may look to a dictionary.

4 Cases that cite this headnote

[4]

Products Liability Lapse of time or change in condition

A product manufacturer’s affirmative defense to a products liability claim based on the alteration or modification of the product by a “party” other than the manufacturer after the product leaves the manufacturer’s control applies not only when the one who modifies or alters the product is a party to the action concerning the product, but also whenever anyone other than the manufacturer or seller modifies or alters the product and the remaining statutory requirements are met. West’s N.C.G.S.A. § 99B–3.

[5]

Trial Hearing and determination

In considering a motion for directed verdict, the trial court is required to view the evidence in the light most favorable to the nonmoving party and to give the nonmoving party all reasonable inferences from the evidence, resolving all evidentiary conflicts in that party’s favor.

1 Cases that cite this headnote

[6]

Trial Hearing and determination

So long as some view of the facts reasonably established by the evidence would support a jury’s decision in favor of the defendant, the trial court properly denies a plaintiffs’ motion for directed verdict.

3 Cases that cite this headnote

[7]

Trial Scintilla of evidence

If there is more than a scintilla of evidence supporting the affirmative defense, the trial court’s decision denying a plaintiff’s motion for directed verdict should be affirmed.

3 Cases that cite this headnote

**754 On discretionary review pursuant to N.C.G.S. § 7A–31 of a unanimous decision of the Court of Appeals, 204 N.C.App. 1, 693 S.E.2d 253 (2010), reversing a judgment dismissing plaintiffs’ complaint entered on 15 May 2007 and vacating an order awarding costs to defendant entered on 28 April 2008, both entered by Judge Forrest D. Bridges in Superior Court, Mecklenburg County, and remanding for entry of judgment in favor of Cheyenne Stark and for a trial on the issue of damages. Heard in the Supreme Court on 3 May 2011.

 

Attorneys and Law Firms

Wyrick Robbins Yates & Ponton LLP, Raleigh, by K. Edward Greene and Tobias S. Hampson; and Gilbert and Ollanik, P.C., by James L. Gilbert, pro hac vice, for plaintiff-appellees.

Kilpatrick Townsend & Stockton LLP, Winston–Salem, by Adam H. Charnes, Richard J. Keshian, and Richard D. Dietz; and Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan L.L.P., Raleigh, by Kirk G. Warner and Christopher R. Kiger, for defendant-appellant.

Edward Eldred, Attorney at Law, PLLC, Carrboro, for The Covenant With North Carolina’s Children and KidsAndCars.org, amici curiae.

Yates, McLamb & Weyher, LLP, Raleigh, by Dan J. McLamb, for National Association of Manufacturers, Chamber of Commerce of the United States of America, American Tort Reform Association, and Property Casualty Insurers Association of America, amici curiae.

Michael W. Patrick, Chapel Hill, for North Carolina Advocates for Justice, amicus curiae.

Poyner Spruill LLP, Raleigh, by Steven B. Epstein, for North Carolina Association of Defense Attorneys and North Carolina Chamber, amici curiae.

I. Beverly Lake Jr., Raleigh, pro se, and for former members of the North Carolina General Assembly H. Parks Helms, Robert B. Jordan, III, I. Beverly Lake Jr., and H. Martin Lancaster, amici curiae.

Womble Carlyle Sandridge & Rice, PLLC, Raleigh, by Burley B. Mitchell, Jr., William F. Womble, Jr., James R. Morgan, Jr., and John E. Pueschel, Winston–Salem, for Product Liability Advisory Council, amicus curiae.

Opinion

NEWBY, Justice.

*469 This case presents the question whether the product alteration or modification defense provided to manufacturers and sellers in products liability actions by section 99B–3 of our General Statutes applies only if the one who altered or modified the product is a party to the litigation at the time of trial.1 By its plain language, section 99B–3 protects manufacturers and sellers from liability for injury proximately caused by a modification or alteration made by anyone else to their product without their consent or instruction. The General Assembly did not limit the use of this defense to those occasions when the one who alters or modifies the product is a party to the action at the time of trial. As the Court of Appeals concluded otherwise, **755 we reverse that decision and remand this case to that court for additional proceedings.

 

Tonya Stark was driving her husband to work and her children to school in a 1998 Ford Taurus on the morning of 28 April 2003. Tonya began that day between 5:00 and 5:30 a.m. by waking up and bathing *470 three of her children. While Tonya was busy with the children, Gordon Stark, her husband, prepared for a day of work. When the Starks were ready to go, Gordon put their sleeping daughter Cheyenne in the rear seat of the Taurus, directly behind the driver’s seat, and then he sat in the front passenger seat. Tonya secured their son Cory in the middle rear seat before she got into the driver’s seat. Their son Cody seated himself in the rear seat of the Taurus, directly behind Gordon. The plan was to take Gordon to work at Husqvarna, where he needed to arrive between 7:00 and 7:30 a.m., and then travel to Kannapolis to have the children at their school by 8:20 a.m.

 

At some point that morning, Gordon told Tonya that he needed to stop at a convenience store before work. Tonya entered the parking lot of a store at the corner of The Plaza and Eastway in Charlotte, North Carolina. Gordon went into the store to make some purchases, but returned to the car when he realized he did not have his wallet. Gordon told Tonya to take him back home so he could get his wallet and return to complete his purchases before they continued on to work and school. Tonya backed out of her parking space and attempted to leave the convenience store parking lot via a pass-through, which would allow the Starks to return to the house more quickly. She remembered almost immediately, however, that the pass-through had been closed. Tonya then made a U-turn and entered the adjacent parking lot of a Bojangles restaurant. The car began to accelerate rapidly, proceeding through several empty parking spaces. Gordon and Tonya struggled over the steering wheel as the Starks continued through the lot. Their trip came to an abrupt end when the Taurus went up and over a small curbed island containing mulch and monkey grass and then slammed into the concrete base of a light pole while moving at twenty-six miles per hour. At no point during these events did Tonya apply the Taurus’s brakes.

 

The Starks suffered numerous injuries in the crash. Gordon looked at his wife immediately after the impact, and he thought she was dead. Cory suffered a cut to his eye area through which his “eyeball” was visible “even though his eye was closed,” as well as a concussion and a neck injury. Gordon shattered his elbow and left wrist and broke his left shoulder. Gordon’s doctors informed him that his left hand might need to be amputated due to the severity of the fracture. Cody and Cheyenne had the most serious injuries. Cody experienced a tear in his liver, several superficial tears on the surface of his colon, a hematoma underneath his bowel, and a perforation of his small bowel causing leakage into his stomach. Cody required *471 emergency lifesaving surgery as a result. Cheyenne sustained bruises on her abdomen, an abrasion on her forehead, a tear on the tip of her tongue, and an injury to her spinal cord. Though Cheyenne was able to walk after the crash, her condition deteriorated later that day, and she became paralyzed.

 

Through their Guardian ad Litem, Cheyenne and Cody (plaintiffs) sued Ford Motor Company (Ford) after the crash. Plaintiffs acknowledged that Ford did not cause the wreck, but claimed that the Taurus’s seat belt system caused their enhanced, or more serious, injuries. Cody and Cheyenne contended that the seat belts did not fit them properly and did not hold them in place during the incident. They alleged these deficiencies in the design of the Taurus caused Cody’s abdominal injuries and Cheyenne’s paralysis. Ford asserted that Cody and Cheyenne suffered these injuries because of the seriousness of the collision and a failure to use the Taurus—and specifically its safety equipment—as it was designed and as Ford instructed. Ford contended the Taurus and its seat belt system are reasonably designed and safe when used properly.

 

Plaintiffs presented evidence in support of their claims. They offered testimony from Joseph Burton, M.D., an expert in forensic pathology, biomechanics, and occupant kinematics. He testified that seat belts are designed **756 to “couple” a passenger to a vehicle in a crash, allowing the passenger to slow down with the car. When the passenger and vehicle are slowing together, the passenger can rely in part on the crush zone of the vehicle to absorb energy. In contrast, an unbelted passenger continues to move at the same speed the car was traveling before impact until the passenger hits something that causes him to slow down. In that case the passenger does not get the benefit of the vehicle’s crush zone. Dr. Burton stated that a vehicle’s seat belt system should couple the passenger to the vehicle with both a shoulder belt that comes over the passenger’s shoulder and then goes down “along the rib cage” without covering the “soft parts of [the] abdomen,” and a lap belt that rests over the bones of a passenger’s pelvis.

 

Dr. Burton explained to the jury that the seat belt system in the Taurus did not perform in this manner for Cody and Cheyenne. He opined that a defect in the seat belt system allowed excess belt webbing to come off the spool, creating slack in the belt. This slack prevented the Taurus’s belt system from coupling Cody and Cheyenne to the vehicle as it should have. The shoulder belt slipped off Cody’s and Cheyenne’s shoulders. As a result of that slippage Cody sustained *472 bruising from his lap belt over his hips, some type of abrasion “to the right side of his chest” from his shoulder belt, and numerous internal injuries in his abdominal area. Cheyenne suffered a bruise above her navel, a bruise on her lower abdomen from her lap belt, an abrasion on her forehead, a cut on the end of her tongue, and “some changes” in the lumbar area of her spine. Her shoulder belt also acted as a fulcrum, damaging her spinal cord at level T3, which is in her upper back. Dr. Burton informed the jury that he believes that before the crash, both Cody and Cheyenne were properly belted, with their shoulder belts in front of them. He posited that Cheyenne’s smaller size may be the reason for her permanent injury.

 

Dr. Burton also testified that the collision was not responsible for Cheyenne’s and Cody’s enhanced injuries. He explained that plaintiffs’ enhanced injuries are not what he would expect from the type of collision in which they were involved. Instead, he characterized their injuries as “mechanical injuries,” which “are caused by ... the way the[ir] bodies are interacting with the structure.” Such injuries, he said, are not related to the speed of the car before impact and may result from a vehicle that is traveling twenty miles per hour or sixty miles per hour when a collision occurs.

 

Ford asserted in response that this was a serious collision in which the Taurus was misused. Joe Kent, Ford’s accident reconstruction and accident analysis expert, informed the jury that the impact of the crash was roughly the same as would have been achieved by dropping the Taurus from the fourth floor of a building. Dr. Murray Mackay, Ford’s expert in seat belt occupant interaction, biomechanics, injury mechanism, and occupant kinematics, testified that Cheyenne’s seat belt system had been modified by placing the shoulder belt behind her back. Cheyenne had no bruising or other markings on her body consistent with the shoulder belt having been in front of her at the time of the collision, though she did have bruises from her lap belt. Dr. Mackay also stated that Cheyenne’s seat belt had markings and other characteristics consistent with its being behind her back. Dr. Mackay explained to the jury that, in his opinion, Cheyenne’s paralysis resulted from her lap belt compressing her abdomen, which, combined with the absence of a shoulder belt, caused her chest to move toward the floor, which stretched and bent her spinal cord until her chest ultimately came into contact with her thigh. Pamela Oviatt, Ford’s expert in vehicle and occupant restraint design performance, also testified that Cheyenne’s shoulder belt exhibited markings consistent with its being behind her back at the *473 time of the collision. Ford presented evidence indicating that Cheyenne had on prior occasions placed the shoulder portion of the belt behind her back and that on the date in question, Gordon did the same thing.

 

At the close of evidence plaintiffs argued that Ford’s defense under section 99B–3 should not be submitted to the jury, and they sought a directed verdict in their favor on that issue. Plaintiffs asserted that **757 section 99B–3 allows manufacturers to be relieved of liability only when an alteration or modification by another party to the litigation proximately causes injury. Plaintiffs maintained that because neither Gordon nor Tonya was then a party to the action, Ford could not use this statutory defense to avoid liability for any injury proximately caused by a modification made by either of them. The trial court rejected plaintiffs’ argument.

 

At the conclusion of the five week trial, the court instructed the jury on the section 99B–3 defense. The court explained that if it reached this issue, the jury must decide whether

the enhanced injuries to Cheyenne Stark [were] proximately caused by an alteration or modification made to the product by someone—were the enhanced injuries to Cheyenne Stark caused by an alteration or a modification of the 1998 Ford product.

On this issue the burden of proof is on the defendant. This means that the defendant must prove by the greater weight of the evidence four things:

First, that the 1998 Ford Taurus was altered or modified. A product has been altered or modified if there has been a change in its design or use from that—if there has been a change in its use from that which was originally designed, tested, or intended by the manufacturer. An alteration—let me say that again.

A product has been altered or modified if there has been a change in its use from that originally designed, tested, or intended by the manufacturer.

Second, that someone other than the defendant made the alteration or modification after the Ford Taurus left the control of the defendant.

Third, that the defendant did not expressly consent to that alteration or modification, or that such alteration or modification was not in accordance with the defendant’s instruction and specifications.

*474 Fourth, that such alteration or modification was a proximate cause of injuries to Cheyenne Stark. Of course, we are talking about enhanced injuries. You now know what proximate cause is. I have said that several times. It’s a cause in which in a natural and continuous sequence produces a person’s injury and a cause in which a reasonable and prudent person could have foreseen would probably produce that injury or such similar injurious result. Keep in mind there may be more than one proximate cause of an injury.

In this case the defendant Ford contends and the plaintiff denies that there was an alteration or modification of the product after it left the defendant’s control; namely, that Gordon and Tanya [sic] failed to properly secure and restrain Cheyenne Stark in the rear seat of the Ford Taurus; that Cheyenne’s shoulder strap at the time of this collision was being worn behind her back.

The defendant contends that you should find these facts from the evidence, and the plaintiff disagrees that you should do so. Obviously, again, this determination is one of the decisions that you have to make based upon the evidence that has been presented and taking into account all the various rules that I have mentioned to you.

So then finally on this Issue Number 6 on which the defendant has the burden of proof, if you find by the greater weight of the evidence that the enhanced injuries to Cheyenne Stark were proximately caused by an alteration or a modification to the Ford Taurus, made by someone other than Ford Motor Company after it left Ford’s control and without Ford’s consent or not in accordance with Ford’s instructions or specifications, then it would be your duty to answer this issue yes, in favor of the defendant.

On the other hand, if you fail to so find, it would be your duty to answer this issue no, in favor of the plaintiff.

After addressing the jury on the section 99B–3 defense, the trial court finished its instructions and submitted the case to the jury.

 

After three days of deliberation, the jury returned its verdict, finding Ford not liable for the enhanced injuries to Cody and Cheyenne. Plaintiffs were unable to sustain an unreasonable design claim for Cody’s belt, but did so with respect to Cheyenne’s. **758 Nonetheless, the jury determined that Cheyenne’s enhanced injuries were also proximately caused by a modification of the Taurus, which relieved Ford *475 of liability. The trial court entered judgment accordingly and taxed $45,717.92 in costs against plaintiffs and the Guardian ad Litem. After unsuccessfully moving for judgment notwithstanding the verdict, a new trial on the modification defense, and a new trial on all issues, plaintiffs and the Guardian ad Litem appealed from the judgment, the order taxing costs, and the order denying their alternative motions.

 

The Court of Appeals reversed the trial court’s judgment, holding among other things that plaintiffs were entitled to a directed verdict on Ford’s affirmative defense under section 99B–3. Stark ex rel. Jacobsen v. Ford Motor Co., 204 N.C.App. 1, 12, 15, 693 S.E.2d 253, 260–61 (2010). Disagreeing with the trial court’s interpretation, the Court of Appeals reasoned that section 99B–3 gives a manufacturer or seller no defense when the product modifier is not a party to the action at the time of trial. Id. at 12, 693 S.E.2d at 260. The court concluded, inter alia, that because Gordon Stark was not a party to the action at the time of trial, any modification by him could not support the defense in section 99B–3. Id. We allowed defendant’s petition for discretionary review. Stark ex rel. Jacobsen v. Ford Motor Co., 365 N.C. 190, 705 S.E.2d 741 (2011).

 

[1] To resolve this appeal we must decide whether the trial court properly interpreted the scope of the defense provided by section 99B–3 of our General Statutes. Plaintiffs assert that the Court of Appeals correctly stated that section 99B–3 affords a defense only when the product modifier is a party to the action at the time of trial. Defendant, on the other hand, contends the trial court properly interpreted this statute, which allows a manufacturer to be relieved of liability when anyone else alters or modifies its product. Whether a statute has been properly interpreted is a legal question, which this Court reviews de novo. In re Ernst & Young, LLP, 363 N.C. 612, 616, 684 S.E.2d 151, 154 (2009) (citations omitted).

 

[2] We begin our analysis by examining the text of the statute. Correll v. Div. of Soc. Servs., 332 N.C. 141, 144, 418 S.E.2d 232, 235 (1992) (citation omitted). Section 99B–3 states:

(a) No manufacturer or seller of a product shall be held liable in any product liability action where a proximate cause of the personal injury, death, or damage to property was either an alteration or modification of the product by a party other than the manufacturer or seller, which alteration or modification occurred after the product left the control of such manufacturer or such seller unless:

*476 (1) The alteration or modification was in accordance with the instructions or specifications of such manufacturer or such seller; or

(2) The alteration or modification was made with the express consent of such manufacturer or such seller.

(b) For the purposes of this section, alteration or modification includes changes in the design, formula, function, or use of the product from that originally designed, tested, or intended by the manufacturer. It includes failure to observe routine care and maintenance, but does not include ordinary wear and tear.

N.C.G.S. § 99B–3 (2011). According to its text, the statute shields a manufacturer or seller from liability proximately resulting from changes to a product’s “design, formula, function, or use ... from that originally designed, tested, or intended” and other unspecified “alteration[s]” and “modification [s].” Id. § 99B–3(b). Section 99B–3 does not, however, relieve a manufacturer or seller of liability for all alterations and modifications, only some. Id. § 99B–3(a). Whether a manufacturer or seller can avail itself of this statutory defense depends on when and how the modification or alteration occurred and, to a limited extent, on who modified or altered the product. Id. A manufacturer or seller cannot escape liability for injury proximately caused by an alteration or modification done before the point in time at which the product left the manufacturer’s or seller’s control, regardless of who modified the product and how it was done. Id. Of **759 those alterations or modifications done after the product leaves the manufacturer’s or seller’s control, the manufacturer or seller cannot use this defense, no matter who modifies the product, if the alteration or modification was done “in accordance with [the manufacturer’s or seller’s] instructions or specifications,” N.C.G.S. § 99B–3(a)(1), or with its “express consent,” id. § 99B–3(a)(2). Finally, a manufacturer or seller is not relieved of liability for damage proximately caused by its own modification or alteration; the defense is available only when the modification or alteration “was ... by a party other than the manufacturer or seller.” Id. § 99B–3(a) (emphasis added).

 

[3] Plaintiffs and defendant disagree whether the legislature intended the word “party” in section 99B–3 to have a broad, general meaning or a narrow, technical meaning. The legislature has not defined the word “party” in the statute, see id. § 99B–3, or anywhere else in Chapter 99B of our General Statutes, which addresses products liability actions, see N.C.G.S. §§ 99B–1 to –11 (2011). Undefined words *477 are accorded their ordinary meaning, for which we may look to a dictionary. Perkins v. Ark. Trucking Servs., Inc., 351 N.C. 634, 638, 528 S.E.2d 902, 904 (2000) (citations omitted). When not being used in reference to a social event, the noun form of the word “ party” is generally defined as a “person” or “group.” Merriam–Webster’s Collegiate Dictionary 848 (10th ed.1999). The word is used to refer, generally, to an “individual” and can also be used to describe, specifically, an individual or individuals who are involved in a contest, organized for political purposes, or taking part in an activity. Id.

 

The only limiting language in the text of the statute pertaining to the legislature’s use of the term “party” is the phrase “other than the manufacturer or seller.” N.C.G.S. § 99B–3. That modifying phrase reveals the General Assembly’s intent regarding the meaning and scope of the word “party” here. The General Assembly used the term “party” in such a way that it felt it necessary specifically to exclude the manufacturer or seller from the term’s broad reach, without regard to whether the manufacturer or seller had been made a party to any litigation by virtue of being sued. Because the status of the manufacturer or seller in regard to a suit is immaterial, this blanket exclusion of the manufacturer or seller from those whose modification or alteration will relieve the manufacturer or seller from liability demonstrates the General Assembly’s intent that a “party” under the statute is not limited to a party to the action. In other words, the General Assembly used “party” in such a way that a manufacturer or seller who had not been sued and was not a party to any litigation could nevertheless be a party whose modification or alteration could invoke the defense if the manufacturer or seller had not been specifically excluded. Thus, the limiting language of the statute establishes the intent of the General Assembly that the defense set out in section 99B–3 is available when anyone other than the manufacturer or seller modifies or alters the product.

 

Moreover, the one who modifies or alters the product becomes a “party” as that word is used in section 99B–3 at the time of the modification, before the commencement of any litigation. The text of section 99B–3 focuses on several distinct points in time. The introductory language of the statute is concerned with the time at which the defense of product modification or alteration is used in litigation: “No manufacturer or seller of a product shall be held liable in any product liability action....” Id. § 99B–3(a). The remaining temporal portion of section 99B–3 focuses on the points in time at which the modification *478 and injury occurred: When “a proximate cause of the personal injury ... was ... an alteration or modification ... by a party other than the manufacturer or seller, which ... occurred after the product left the control of such manufacturer or such seller.” Id. The legislature’s use of the past tense “was” when referring to the modification by a party illustrates that the one who modifies the product is a “party” as that word is used in section 99B–3 at the time of the modification, before any litigation regarding the subject. This usage, too, indicates that the General Assembly intended that the word “party” have a broad, general meaning, and that the defense found in section 99B–3 be available when anyone other than the **760 seller or manufacturer modifies or alters the product. Accordingly, we conclude that the trial court’s interpretation is consistent with the statute’s text.

 

The trial court’s interpretation of section 99B–3 comports with the long-standing explanation of this statute found in our Pattern Jury Instructions. There are two Pattern Jury Instructions that address section 99B–3: Civil 744.07 and Civil 743.07. The former applies to causes of action arising on or after 1 January 1996, and it was drafted following the only amendment to the statute in its history. See Act of July 29, 1995, ch. 522, sec. 1, 1995 N.C. Sess. Laws 1872, 1873–74. The instruction states in relevant part that this defense applies when “someone other than the defendant made the alteration or modification.” 1 N.C.P.I.—Civ. 744.07 (gen. civ. vol. May 1999) (“Products Liability—Seller’s and Manufacturer’s Defense of Product Alteration or Modification. N.C.G.S. § 99B–3(a).”). The latter instruction applies to pre–1996 causes of action, and it similarly interprets the defense found in section 99B–3 to be available when “someone other than the defendant made the alteration or modification.” 1 N.C.P.I.—Civ. 743.07 (gen. civ. vol. May 1999) (“Products Liability–Seller’s and Manufacturer’s Defense of Product Alteration or Modification. N.C.G.S. § 99B–3(a).”). The North Carolina Pattern Jury Instructions are prepared by a committee of ten trial judges appointed by the President of the Conference of Superior Court Judges of North Carolina, 1 N.C.P.I.—Civ. .005 (gen. civ. vol. June 2010), and those instructions are designed to articulate the law plainly and accurately, 1 N.C.P.I.—Civ. .010 (June 1975). While the Pattern Jury Instructions are not binding on this Court, State v. Ward, 364 N.C. 157, 161, 694 S.E.2d 729, 732 (2010), they do express the long-standing, published understanding of this statute, with which the trial court’s explanation in this case—the section 99B–3 defense applies when “someone other than the defendant made the alteration or modification”—is consistent.

 

*479 The trial court’s interpretation of section 99B–3 is also consistent with scholarly commentary. Shortly after the statute’s enactment, a law review article written by two distinguished members of the bar observed that under section 99B–3, “an alteration or modification by someone other than the manufacturer or seller relieves both parties of liability if (1) the modification or alteration was not done according to instructions or specifications or (2) the modification or alteration was not done with the express consent of the manufacturer or seller.” Charles F. Blanchard & Doug B. Abrams, North Carolina’s New Products Liability Act: A Critical Analysis, 16 Wake Forest L.Rev. 171, 175 (1980). More recent commentary is consistent with that initial observation. E.g., John N. Hutson, Jr. & Scott A. Miskimon, North Carolina Contract Law § 16–3–1, at 775 (2001) (“The Products Liability Act provides a defense to product liability actions where a proximate cause of the injury was an alteration or modification of the product by someone other than the manufacturer or seller.”). It is worth noting that during these years of consistent commentary and interpretation, the General Assembly has revisited section 99B–3 only once, in 1995, making just a superficial, nonsubstantive change by adding a serial comma after the word “death.” Ch. 522, sec. 1, 1995 N.C. Sess. Laws at 1873–74.

 

The Court of Appeals’ reading of section 99B–3, on the other hand, is not supported by the text of the statute. That court reasoned that, by using the word “party” in the phrase “party other than the manufacturer or seller,” the legislature intended to limit the availability of this defense to cases in which the one who modified or altered the product is a party to the action at the time of trial. Stark, 204 N.C.App. at 12, 693 S.E.2d at 260. If the General Assembly had intended to limit the availability of this defense to the circumstances articulated by the Court of Appeals, it could have done so by inserting the words “to the action” into the statute. A cursory review of other sections of our General Statutes reveals the legislature is familiar with the phrase “party to the action.” See, e.g., N.C.G.S. § 58–2–75(d) (2011) ( “Appeals ... may be taken to the appellate division of the General Court of Justice by any party to the action as in other civil cases.” (emphasis added)). Adopting the Court of Appeals’ interpretation would force **761 this Court impermissibly to read into section 99B–3 words the legislature chose not to include in its text.

 

[4] The Court of Appeals’ interpretation of section 99B–3 is contrary to that statute’s plain language, so we reverse that court’s decision. We hold instead that the defense found in section 99B–3 applies not *480 only when the one who modifies or alters the product is a party to the action concerning the product, but also whenever anyone other than the manufacturer or seller modifies or alters the product and the remaining statutory requirements are met. The Court of Appeals held that Ford could not establish a section 99B–3 defense using Gordon or Tonya Stark as the modifier because they were not parties to the action at the time of trial. Stark, 204 N.C.App. at 10–12, 693 S.E.2d at 259–60. Because there is no such legal requirement, to resolve the directed verdict inquiry, we must now consider whether there is sufficient evidence, or some factual basis, to support a determination that someone other than Ford modified the Taurus.

 

[5] [6] [7] In this undertaking we must be mindful of the posture of this case and the rules regarding directed verdict. In considering a motion for directed verdict, the trial court in this case was required to view the evidence in the light most favorable to Ford and to give Ford all reasonable inferences from the evidence, resolving all evidentiary conflicts in Ford’s favor. See Farmer v. Chaney, 292 N.C. 451, 452–53, 233 S.E.2d 582, 583–84 (1977) (citations omitted); see also Taylor v. Walker, 320 N.C. 729, 733–34, 360 S.E.2d 796, 799 (1987) (citations omitted) (explaining the standard to be used when considering a motion for judgment notwithstanding the verdict, but noting the same standard is applied when ruling on motions for directed verdict). So long as some view of the facts reasonably established by the evidence would support a jury’s decision in favor of Ford, the trial court properly denied plaintiffs’ motion. Taylor, 320 N.C. at 733–34, 360 S.E.2d at 799 (citation omitted). In other words, if there is more than a scintilla of evidence supporting this affirmative defense, the trial court’s decision should be affirmed. See Brinkley v. Nationwide Mut. Ins. Co., 271 N.C. 301, 305–06, 156 S.E.2d 225, 228–29 (1967) (citation omitted).

 

With this deferential standard in mind, we conclude there is sufficient evidence in the record from which the jury could have concluded that Gordon Stark modified the vehicle. He testified that he placed Cheyenne in the Taurus on the morning of the accident. Gordon explained that Cheyenne was asleep when he put her in the vehicle and that he was the one who buckled her seat belt that morning. When Gordon placed Cheyenne in the Taurus, he observed that the seat belt was “way too big” for her and that it fell across her head and neck area. Gordon informed the jury that Cheyenne’s shoulder belt was behind her after the collision. Ford’s experts opined that the shoulder portion of Cheyenne’s seat belt was behind her back during the collision as well. From this evidence the jury could properly *481 conclude that Gordon Stark, despite his recollection to the contrary, placed the shoulder portion of Cheyenne’s seat belt behind her back after buckling her in, perhaps in an attempt to prevent the belt from falling uncomfortably across her head and disturbing her sleep. The trial court’s decision on plaintiffs’ motion for directed verdict, as well as the jury’s verdict and the trial court’s judgment applying section 99B–3 to relieve Ford of liability for the injury proximately caused by the design of its product, can therefore be sustained on the basis of this evidence, and we need not consider evidence of other potential modifications or modifiers.

 

In sum, we reverse the decision of the Court of Appeals that the defense found in section 99B–3 of our General Statutes is available only when the product modifier is a party to the action at the time of trial. The plain language of section 99B–3 says that this defense may be used when anyone other than the manufacturer or seller modifies the product, so long as the remaining requirements of that section are met. There was sufficient evidence presented in this five week trial from which the jury could conclude that Gordon Stark modified the Taurus. Having resolved this case on that issue, we need not consider the remaining issues presented by the parties to this Court, and any discussion **762 of them would be obiter dictum. Accordingly, we express no opinion regarding other aspects of the Court of Appeals decision on the propriety of incorporating child negligence principles into the provisions of Chapter 99B, the party status of Gordon and Tonya Stark at the time of trial, and the validity of conducting a trial in this case solely on the issue of damages. This case is remanded to the Court of Appeals for additional proceedings consistent with this opinion.

 

REVERSED AND REMANDED.

 

All Citations

365 N.C. 468, 723 S.E.2d 753, Prod.Liab.Rep. (CCH) P 18,830

Footnotes

1

While other issues were raised by the parties and passed upon by the Court of Appeals, our resolution of this question obviates the need to address them.

2

The majority speculates that “perhaps” he moved the belt behind her “in an attempt to prevent the belt from falling uncomfortably across her head and disturbing her sleep.” Such pure speculation has no place in the legal analysis here. That the evidence provides a possible reason why Gordon might have wanted to move the belt does not lead to a reasonable inference that he did move the belt.

3

As to the time elapsed between Gordon buckling Cheyenne into the seat and the moment of the accident, we only have testimony that the trip from the house to the store was “three to five minutes” and that Gordon had gone into the store and come back out. We can reasonably infer that the accident occurred approximately five or ten minutes after Gordon buckled Cheyenne in.

4

The Court in Powell further stated that “[t]he sufficiency of the evidence in law to go to the jury does not depend upon the doctrine of chances. However confidently one in his own affairs may base his judgment on mere probability as to a proposition of fact and as a basis for the judgment of the court, he must adduce evidence of other than a majority of chances that the fact to be proved does exist. It must be more than sufficient for mere guess and must be such as tends to actual proof.” 263 N.C. at 768, 140 S.E.2d at 397 (citations omitted).

End of Document

© 2020 Thomson Reuters. No claim to original U.S. Government Works.

Attachment 3


Kroma Makeup EU, LLC v. Boldface Licensing + Branding, Inc., 920 F.3d 704 (2019)

27 Fla. L. Weekly Fed. C 1803

© 2020 Thomson Reuters. No claim to original U.S. Government Works.

920 F.3d 704

United States Court of Appeals, Eleventh Circuit.

KROMA MAKEUP EU, LLC, a United Kingdom Limited Liability Company, Plaintiff-Appellant,

v.

BOLDFACE LICENSING + BRANDING, INC., a Nevada Corporation, Kimberly Kardashian, a California resident, Kourtney Kardashian, a California resident, Khloe Kardashian, a California resident, BY Lee Tillett, Inc., a Florida Corporation Defendants-Appellee.

No. 17-14211

|

(April 1, 2019)

Synopsis

Background: European distributor of cosmetics products using the federally registered mark “KROMA” brought trademark infringement action against celebrity endorsers of allegedly infringing line of cosmetics. The United States District Court for the Middle District of Florida, Paul G. Byron, J., 264 F.Supp.3d 1294, granted the defendants’ motion for summary judgment, and plaintiff appealed.

 

[Holding:] The Court of Appeals, Goldberg, Circuit Judge, held that licensing agreement did not give authority to licensee to sue under the Lanham Act.

 

Affirmed.

 

West Headnotes (7)

[1]

Federal Courts Summary judgment

The district court’s grant of summary judgment is reviewed de novo and the Court of Appeals applies the same legal standards that governed the district court.

1 Cases that cite this headnote

[2]

Federal Courts Summary judgment

When reviewing a grant of summary judgment, the Court of Appeals views the evidence in the light most favorable to the non-moving party and resolves all reasonable doubts about the facts in favor of the non-movant. Fed. R. Civ. P. 56(a).

1 Cases that cite this headnote

[3]

Federal Courts Theory and Grounds of Decision of Lower Court

The district court’s grant of summary judgment can be affirmed on any ground supported by the record, regardless of the basis for the initial decision. Fed. R. Civ. P. 56(a).

[4]

Trademarks Duties, rights, and violations

Trademarks Persons entitled to sue

A licensee’s right to sue to protect a trademark largely depends on the rights granted to the licensee in the licensing agreement. Lanham Trade-Mark Act § 43, 15 U.S.C.A. § 1125(a)(1).

[5]

Trademarks Duties, rights, and violations

Trademarks Persons entitled to sue

Although the Lanham Act affords a cause of action to “any person who believes that he or she is likely to be damaged,” this broad language does not get such an expansive reading so as to allow all factually injured plaintiffs to recover; this is especially true where a licensing agreement between two parties governs each party’s entitlement to trademark infringement claims. Lanham Trade-Mark Act § 43, 15 U.S.C.A. § 1125(a)(1).

[6]

Trademarks Duties, rights, and violations

Trademarks Persons entitled to sue

License agreement granting licensee the right to use “KROMA” mark in connection with its distribution of cosmetics products in Europe gave licensor exclusive right to sue for trademark infringement and precluded licensee from suing under the Lanham Act; agreement reserved ownership of the mark to licensor, and obligated licensor to protect against infringement and to compensate licensee for losses resulting from infringement. Lanham Trade-Mark Act § 43, 15 U.S.C.A. § 1125(a)(1).

1 Cases that cite this headnote

[7]

Action Statutory rights of action

A statutory cause of action extends only to plaintiffs whose interests fall within the zone of interest protected by the law invoked.

Attorneys and Law Firms

*705 Elizabeth Lee Beck, Jared Harrison Beck, Beverly Virues, Beck & Lee, PA, MIAMI, FL, Cullin A. O’Brien, Cullin O’Brien Law, PA, FORT LAUDERDALE, FL, for Plaintiff-Appellant.

Michael Joseph Kump, Jonathan Philip Steinsapir, Katherine T. Kleindienst, Gregory P. Korn, Kinsella Weitzman Iser Kump & Aldisert, LLP, SANTA MONICA, CA, Ron J. Bitman, Bitman O’Brien & Morat, PLLC, LAKE MARY, FL, Allison Morat, Pearson Doyle Mohre & Pastis, LLP, MAITLAND, FL, for Defendant-Appellees KIMBERLY KARDASHIAN, KOURTNEY KARDASHIAN, KHLOE KARDASHIAN.

Kirsten DeMay Blum, Dana Snyderman Lidfeldt, Amy S. Tingley, THE VUE AT LAKE EOLA, ORLANDO, FL, for Defendant-Appellee BY LEE TILLETT, INC.

Appeal from the United States District Court for the Middle District of Florida D.C. Docket No. 6:14-cv-01551-PGB-GJK

Before MARCUS and DUBINA, Circuit Judges, and GOLDBERG,* Judge.

Opinion

GOLDBERG, Judge:

*706 Plaintiff-Appellant Kroma Makeup EU, LLC (“Kroma EU”) appeals the district court’s grant of summary judgment based on its finding that Kroma EU lacked standing to enforce the KROMA trademark. Because Kroma EU does not have sufficient rights in the mark to sue under the Lanham Act, we affirm the judgment of the district court.

 

BACKGROUND

Kroma EU is the former European distributor of cosmetics products using the federally registered mark, KROMA. The owner and registrant of the mark is By Lee Tillett, Inc. (“Tillett”) and the rights to use the KROMA mark in the United States rest solely with Tillett. In October 2012, Tillett granted an exclusive license to Kroma EU to import, sell, and distribute KROMA products in Europe, and to use the KROMA mark in furtherance of its business. As part of the licensing agreement, Tillett guaranteed that it owned the KROMA mark and would hold Kroma EU harmless from any judgments against Tillett based on the mark. Tillett retained the right to use the KROMA mark in the United States.

 

Defendant-Appellees—the Kardashian sisters—were celebrity endorsers of a cosmetic line called “Khroma Beauty,” sold and manufactured by Defendant Boldface Licensing & Branding, Inc. (“Boldface”). The Kardashians claim that they had no personal knowledge of the KROMA trademark until an entertainment news website, TMZ, published an article about the Kardashians’ potential infringement. However, before the Khroma Beauty line launched, Boldface had purportedly conducted a trademark search that revealed the existence of the KROMA mark. The Kardashians claim that they did not receive this information. Boldface sought to register the KHROMA or KARDASHIAN KHROMA mark with the U.S. Patent and Trademark Office, but registration was denied because of likelihood of confusion with the previously registered KROMA mark.

 

After the Khroma line was released, Boldface sought a declaratory judgment in California federal court that Boldface did not infringe the KROMA trademark. There, Tillett filed a trademark infringement counterclaim, adding the Kardashians as counterclaim defendants. The California district court granted Tillett’s motion for a preliminary injunction against Boldface, finding that Tillett had demonstrated a likelihood of success on the trademark infringement claim. Boldface Licensing + Branding v. By Lee Tillett, Inc., 940 F.Supp.2d 1178 (C.D. Cal. 2013). Thereafter, Boldface rebranded the product line to “Kardashian Beauty” and the parties settled the dispute. Kroma was not a party to the California action and did not receive a share of the settlement recovery from Tillett.

 

Kroma EU subsequently filed this action in the Middle District of Florida against Boldface and the Kardashians, alleging that Boldface directly infringed the KROMA trademark under common law trademark infringement and the Lanham Act by distributing “Khroma” branded cosmetics in Europe, and that the Kardashians were vicariously liable for Boldface’s infringement. Kroma EU also brought claims against Tillett, alleging a cause of action for promissory estoppel. As to the promissory estoppel claim, the district court held in an earlier order that under Florida law, a foreign licensee could not state a claim for promissory estoppel against its licensor; however, Kroma EU was able to proceed against Tillett under a breach of contract theory. *707 Kroma Makeup EU, Ltd. v. Boldface Licensing + Branding, Inc., No. 6:14-cv-1551-ORL, 2015 WL 1708757, at *1 (M.D. Fla. Apr. 15, 2015).

 

The Kardashians moved for summary judgment arguing that Kroma EU did not have the requisite standing to bring the infringement action and that the trademark infringement cause of action was barred by claim preclusion. Kroma EU also moved for partial summary judgment on the issue of liability. Earlier in the litigation, Tillett successfully moved to compel arbitration and Kroma EU’s claim against Tillett remains stayed pending the arbitration.

 

The district court granted the Kardashians’ motion. The court found that Kroma EU lacked standing to sue for trademark infringement and did not reach the Kardashians’ claim preclusion argument. Relying primarily on the licensing agreement between Tillett and Kroma EU, the district court held that the agreement “plainly authorized only Tillett to enforce the trademarks” and to “protect” the mark “from any attempts of illegal use,” while “Kroma EU’s sole directive was to inform Tillett of instances of infringement.” Based on this reading, the district court concluded that these provisions “plainly authorized only Tillett to enforce the trademarks governed by the License Agreement.” Therefore, Kroma EU “lack[ed] contractual authority, and hence standing, to pursue § 1125(a) violations against infringers in its own capacity.” Based on Kroma EU’s purported lack of standing, the court denied Kroma EU’s motion for partial summary judgment as moot.

 

JURISDICTION

At the time of this appeal, the district court had not yet disposed of all claims against all parties. Kroma EU’s claim against Tillett had been stayed pending arbitration, and the district court had failed to enter a default judgment as to Boldface, which was served with process but had never appeared. Instead of dismissing the appeal for lack of jurisdiction, however, we gave Kroma EU the opportunity to request certification of the summary judgment order from the district court under Rule 54(b). Order, Kroma Makeup EU, LLC v. Boldface Licensing & Branding, Inc., et al., No. 17-14211 (11th Cir. Feb. 5, 2019). A Rule 54(b) judgment has now been entered as to the claims against the Kardashians and final judgment was entered in favor of the Kardashians. Rule 54(b) Judgment, Kroma Makeup EU, LLC v. Boldface Licensing & Branding, Inc., et al., 6:14–cv–1551, ECF No. 172 (M.D. Fla. Feb. 21, 2019). The Court, then, maintains jurisdiction over this appeal.

 

STANDARD OF REVIEW

[1] [2] [3]The district court’s grant of summary judgment is reviewed de novo and we apply the same legal standards that governed the district court. Johnson v. Bd. of Regents of Univ. of Ga., 263 F.3d 1234, 1242 (11th Cir. 2001). Summary judgment is proper when the evidence shows “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). When reviewing a grant of summary judgment, we view the evidence in the light most favorable to the non-moving party and resolve all reasonable doubts about the facts in favor of the non-movant. Feliciano v. City of Miami Beach, 707 F.3d 1244, 1247 (11th Cir. 2013) (quoting Skop v. City of Atlanta, 485 F.3d 1130, 1143 (11th Cir. 2007)). The district court’s judgment can be affirmed on any ground supported by the record, regardless of the basis for the initial decision. Parks v. City of Warner Robins, 43 F.3d 609, 613 (11th Cir. 1995).

 

*708 ANALYSIS

[4]The issue before us is the extent of a licensee’s rights in a trademark infringement action under Section 43(a) of the Lanham Act. While the Lanham Act typically evokes questions of standing, as a licensee, Kroma EU’s rights thereunder rely upon the licensing agreement it entered with Tillett. We adopt the position taken by the district courts in this circuit—that a licensee’s right to sue to protect the mark “largely depends on the rights granted to the licensee in the licensing agreement.” Drew Estate Holding Co. v. Fantasia Distrib., Inc., 875 F.Supp.2d 1360, 1366 (S.D. Fla. 2012) (quoting Hako-Med USA, Inc. v. Axiom Worldwide, Inc., No. 8:06-cv-1790-T-27EAJ, 2006 WL 3755328, at *6 (M.D. Fla. Nov. 15, 2006)). See also Aceto Corp. v. TherapeuticsMD, Inc., 953 F.Supp.2d 1269, 1279 (S.D. Fla. 2013) (“[S]tanding to sue depends largely on the rights granted to the licensee under the licensing agreement.”).

 

[5]Kroma EU disputes the district court’s ruling that it lacks the requisite standing to bring an infringement claim under the Lanham Act. The Lanham Act provides a cause of action against “[a]ny person who, on or in connection with any goods or services, ... uses in commerce any word, term, name, symbol, or device, or any combination thereof, ... [which] is likely to cause confusion ... as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person.” 15 U.S.C. § 1125(a)(1). The statute affords a cause of action to “any person who believes that he or she is likely to be damaged.” Id. But, despite this broad language, 1125(a) does not get “such an expansive reading” so as to allow “all factually injured plaintiffs to recover.” Lexmark Int’l, Inc v. Static Control Components, Inc., 572 U.S. 118, 129, 134 S.Ct. 1377, 188 L.Ed.2d 392 (2014) (quoting Holmes v. Sec. Inv’r Prot. Corp., 503 U.S. 258, 266, 112 S.Ct. 1311, 117 L.Ed.2d 532 (1992)). This is especially true where, as here, a licensing agreement between two parties governs each party’s entitlement to infringement claims.

 

[6]The court below focused its attention on whether the license agreement between Tillett and Kroma EU conferred adequate standing on Kroma EU to bring a claim under Section 1125(a). But, the question before us is not that of traditional standing. Indeed, it is “not [of] standing at all.” City of Miami v. Bank of Am. Corp., 800 F.3d 1262, 1276 (11th Cir. 2015), vacated on other grounds, ––– U.S. ––––, 137 S.Ct. 1296, 197 L.Ed.2d 678 (2017). Rather, it is whether the statute “grants the plaintiff the cause of action that he asserts.” Bank of Am. Corp. v. City of Miami, ––– U.S. ––––, 137 S.Ct. 1296, 1302, 197 L.Ed.2d 678 (2017). See also Lexmark, 572 U.S. at 128 n.4, 134 S.Ct. 1377. (“We have on occasion referred to this inquiry as ‘statutory standing’ and treated it as effectively jurisdictional. That label is an improvement over the language of ‘prudential standing,’ since it correctly places the focus on the statute. But it, too, is misleading, since the absence of a valid ... cause of action does not implicate subject-matter jurisdiction, i.e., the court’s statutory or constitutional power to adjudicate the case.” (internal quotation marks and citations omitted)). In other words, does the licensing agreement between Tillett and Kroma EU give Kroma EU, the licensee, sufficient “rights in the name” to sue under the Lanham Act? Camp Creek Hosp. Inns, Inc. v. Sheraton Franchise Corp., 139 F.3d 1396, 1412 (11th Cir. 1998).

 

The answer is no.

 

*709 [7]To start, “a statutory cause of action extends only to plaintiffs whose interests ‘fall within the zone of interest protected by the law invoked.’ ” Lexmark, 572 U.S. at 129, 134 S.Ct. 1377 (quoting Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984)). The licensing agreement affords rights and imposes obligations on the parties relating to the enforcement of any trademark claims. As such, there is little dispute between the parties that we turn to that agreement to determine if Kroma’s interests fall within the zone of interest protected by the Lanham Act. In so doing, we fall back on basic principles of contract interpretation and “construe the agreement as a whole,” Westport Ins. Corp. v. Tuskegee Newspapers, Inc., 402 F.3d 1161, 1164 (11th Cir. 2005), careful to afford the plain language meaning of “each and every word [the agreement] contains,” Equity Lifestyle Props., Inc. v. Fla. Mowing & Landscape Serv., Inc., 556 F.3d 1232, 1242 (11th Cir. 2009).

 

Here, applying the licensing agreement to this inquiry is a straightforward exercise. The plain language of the agreement demonstrates the parties’ intent for Tillett to retain all ownership and enforcement rights. Kroma EU—while it may have other rights under the agreement—does not possess the ability to assert its rights in the mark in this proceeding.

 

There are two integral provisions of the licensing agreement between Tillett and Kroma EU as they relate to trademark infringement. First, and in no uncertain terms, ownership of the mark is reserved to Tillett. Tillett retains the KROMA trademark as its “exclusive and inalienable property” and “reserves the right to assign/transfer it to any individual person or legal entity.” Tethered to the ownership provision, the agreement requires that Tillet “protect [the trademark] properly from any attempts of illegal use, to the best of his knowledge.” Should any infringement occur, Tillett would be required to “guarantee[ ] [Kroma EU] against any claims ... concerning [the mark’s] intellectual property rights.” And even if there were any doubt about the agreement’s terms as they relate to Tillett’s enforcement obligation, the owner of Tillett, Aglaia Lee Rodriguez, explained in a declaration to the district court that these provisions were created with the intent to retain Tillett’s enforcement power over the KROMA mark:

[M]y Company’s intention was to allow [Kroma EU] to advertise and sell our Kroma products in Europe, but at the same time to retain for my Company all rights to the KROMA trademark, including the exclusive right to protect and enforce the KROMA trademark in any infringement actions. I wanted my Company and its lawyers to exclusively control the enforcement of the KROMA trademark, because infringement actions and the publicity surrounding them can have lasting effects on the trademark.

 

The issue boils down to Kroma EU’s rights pursuant to the agreement—and specifically, if an explicit obligation on Tillett to protect against the mark’s infringement precludes Kroma EU’s enforcement powers against the same infringement. Certainly, Kroma EU maintained the exclusive right to use the mark “for advertising purposes and for the purpose of Goods sale and promotion” in Europe. But importantly, Section 4.3.2 only vested Kroma EU with the obligation to “inform [Tillett] of any illegal use of the trademark,” prompting Tillett to file suit against the infringer—at which point Tillett would be required to compensate Kroma for its losses resulting from the infringement. These provisions read together indicate that Tillett alone has the exclusive right to sue for *710 infringement. Otherwise, as the Kardashians point out, there would have been little need for the agreement to require Tillett to compensate Kroma EU for any loss from the infringement. And in concert with the “time-honored maxim of construction, expressio unius est exclusio alterius, the inclusion of specific things implies the exclusion of those not mentioned,” Cast Steel Prods., Inc. v. Admiral Ins. Co., 348 F.3d 1298, 1303 (11th Cir. 2003), these provisions “manifest the [parties’] ability to clearly and precisely delegate and limit authority” over infringement claims, In re Celotex Corp., 487 F.3d 1320, 1334 (11th Cir. 2007). The licensing agreement—and at its core, Kroma EU’s exclusion from any trademark protection rights coupled with Tillett’s explicit enforcement power—does just that.

 

And contrary to Kroma EU’s suggestion that the Kardashians’ interpretation of the agreement implies that Kroma EU ceded to Tillett “any” or “every last shred” of Kroma’s “ability to seek legal recourse”—our reading of the licensing agreement makes no such inference. The agreement—as understood by both parties—obliges Tillett to indemnify Kroma EU for monetary losses caused by any infringement. Surely, Tillett’s failure to do so would potentially raise a cogent breach of contract cause of action. As testament to that available recourse, that is exactly what Kroma EU did when it brought a breach of contract claim for Tillett’s alleged failure to compensate Kroma in the California litigation. Kroma EU, then, is not left without a “shred” of its ability to seek legal recourse based on its rights in the mark.

 

Our sister courts of appeals have agreed with the general sentiment that a license agreement between two parties can limit a licensee’s ability to bring a Lanham Act claim. For example, in Finance Investments Co. (Bermuda) v. Geberit AG, 165 F.3d 526 (7th Cir. 1998), the licensee there was permitted to sue on its own behalf only if the licensor declined to sue after it was notified of the infringement. Otherwise, per the agreement, the licensee’s sole recourse was to notify the licensor of any infringing acts. Id. at 532. Thus, “[b]ecause the license [was] the sole source giving the plaintiffs any interest in the [ ] mark,” when the licensee failed to follow these procedures, it was “strip[ped] ... of the right to raise a § 43(a) claim.” Id.

 

The same can be said for Kroma EU. The licensing agreement plainly authorized Tillett to file suit against infringers. Kroma EU was limited in its available recourse: it was assigned limited rights to the KROMA mark and the agreement clearly delineated its only available recourse regarding trademark infringement. Therefore, the licensing agreement does not give Kroma EU sufficient “rights in the name” to sue under the Lanham Act.

 

Accordingly, we affirm the judgment of the district court.

 

AFFIRMED.

 

All Citations

920 F.3d 704, 27 Fla. L. Weekly Fed. C 1803

Footnotes

*

Honorable Richard W. Goldberg, United States Court of International Trade Judge, sitting by designation.

End of Document

© 2020 Thomson Reuters. No claim to original U.S. Government Works.

Attachment 4


Ruvolo v. Homovich, 149 Ohio App.3d 701 (2002)

778 N.E.2d 661, 49 UCC Rep.Serv.2d 479, 2002 -Ohio- 5852

© 2020 Thomson Reuters. No claim to original U.S. Government Works.

149 Ohio App.3d 701

Court of Appeals of Ohio,

Eighth District, Cuyahoga County.

RUVOLO, Appellant,

v.

HOMOVICH et al., Appellees.

No. 80896.

|

Decided Oct. 24, 2002.

Synopsis

Restaurant customer, who was allegedly injured when a chicken bone became lodged in his throat, brought action against restaurant and its food distributors for failing to properly inspect chicken used in his sandwich. The Court of Common Pleas, Cuyahoga County, entered summary judgment for defendants. Customer appealed. The Court of Appeals, Colleen Conway Cooney, J., held that: (1) customer should have reasonably anticipated that his chicken sandwich might contain a chicken bone, precluding his recovery, and (2) trial court did not abuse its discretion by failing to compel defendants to answer interrogatories regarding their inspection process for chicken.

 

Affirmed.

 

Terrence O’Donnell, J., concurred in judgment only.

 

West Headnotes (5)

[1]

Food Fault of plaintiff or third parties

Restaurant customer should have reasonably anticipated that his chicken sandwich might contain a chicken bone, precluding his recovery against restaurant and its food distributors for injury he allegedly sustained when a chicken bone became lodged in his throat while he was eating the sandwich, even though the chicken meat was wrapped in a flour tortilla instead of a traditional bread.

3 Cases that cite this headnote

[2]

Pretrial Procedure Other remedy, availability or prior use of

Trial court did not abuse its discretion by failing to compel restaurant and its food distributors to answer interrogatories regarding their inspection process for chicken served to customer at restaurant, in customer’s action alleging he was injured when a chicken bone became lodged in his throat while he was eating a sandwich, in light of defendant’s expressed willingness to cooperate with discovery so long as customer signed a confidentiality agreement.

3 Cases that cite this headnote

[3]

Appeal and Error Discovery

A trial court’s ruling on discovery issues will not be reversed in the absence of an abuse of discretion.

1 Cases that cite this headnote

[4]

Appeal and Error Interrogatories

Even assuming trial court erred in failing to compel restaurant and its food distributors to answer interrogatories regarding their inspection process for chicken served to customer at restaurant, such error was harmless, in customer’s action alleging he was injured when a chicken bone became lodged in his throat while he was eating a sandwich, in light of determination that chicken bone in sandwich was a natural occurrence for which restaurant and distributors were not liable.

3 Cases that cite this headnote

[5]

Food Meat, fish and poultry

Food preparers are not liable for the presence of bones in a chicken breast because it is a natural occurrence.

Attorneys and Law Firms

**661 *702 William L. Blake, Cleveland, for appellant.

Marshall, Dennehey, Warner, Coleman & Goggin and Samuel G. Casolari Jr., Steubenville, for appellees.

Opinion

**662 COLLEEN CONWAY COONEY, Judge.

{ ¶ 1} This case came to be heard upon the accelerated calendar pursuant to App.R. 11.1 and Loc.R. 11.1, the record from the lower court, the briefs, and the oral arguments of counsel.

 

{ ¶ 2} Plaintiff-appellant William Ruvolo appeals from the trial court’s granting summary judgment in favor of Taco Bell Corporation, Keystone Foods Corporation, and Ameriservice Food Distribution, Inc. We find no merit to the appeal, and therefore we affirm.

 

{ ¶ 3} On August 6, 1998, Ruvolo purchased two chicken gordita sandwiches from Taco Bell. While eating the second sandwich, he felt a sharp pain in his throat and dislodged a chicken bone. The bone caused a scrape in his throat, and, as a result, he was treated at an emergency room. The following day, Ruvolo was diagnosed with acute tonsillitis, pharyngitis, sinusitis, and gastritis.

 

{ ¶ 4} Ruvolo commenced this action against Taco Bell and its food distributors. He alleged that the infections were due to the chicken bone’s scratching his throat and causing an opening where germs and bacteria could enter. He further alleged that Taco Bell and its food distributors were liable because of their failure to properly inspect the chicken.

 

*703 { ¶ 5} On January 22, 2002, the trial court granted summary judgment in favor of Taco Bell, Keystone, and Ameriservice.

 

{ ¶ 6} Ruvolo raises two assignments of error on appeal.

 

[1] { ¶ 7} In his first assignment of error, Ruvolo contends that a jury question is raised regarding whether a customer would reasonably anticipate that a chicken bone might be contained in a sandwich when the chicken is concealed within a flour tortilla. Accordingly, he maintains that summary judgment was not appropriate under the reasonable expectation analysis.

 

{ ¶ 8} In Allen v. Grafton (1960), 170 Ohio St. 249, 10 O.O.2d 289, 164 N.E.2d 167, the Supreme Court of Ohio held that a piece of oyster shell present in a fried oyster was insufficient to justify the legal conclusion that the entire serving was not reasonably fit for eating. See id. at syllabus. In support of its reasoning, the Supreme Court stated that “ ‘bones which are natural to the type of meat served cannot legitimately be called a foreign substance, and a consumer who eats meat dishes ought to anticipate and be on his guard against the presence of such bones. * * * Certainly no liability would attach to a restaurant keeper for the serving of T-bone steak, or a beef stew, which contained a bone natural to the type of meat served, or if a fish dish should contain a fish bone, or if a cherry pie should contain a cherry stone * * *.’ ” Allen, supra, quoting Mix v. Ingersoll Candy Co. (1936), 6 Cal.2d 674, 59 P.2d 144 (It is a “matter of common knowledge [that] chicken pies occasionally contain chicken bones.”).

 

{ ¶ 9} In cases following Allen, courts have determined that the presence of a piece of clam shell in a fried clam strip or fish bones in a fish fillet does not give rise to liability on the part of the preparer of such food, and one who eats such a dish “must reasonably anticipate and guard against” the presence of bones therein. See Mitchell v. T.G.I. Fridays (2000), 140 Ohio App.3d 459, 748 N.E.2d 89; Mathews v. Maysville Seafoods, Inc. (1991), 76 Ohio App.3d 624, 627, 602 N.E.2d 764; Schoonover v. Red Lobster Inns of Am., Inc. (Oct. 15, 1980), 1st Dist. No. C–790547.

 

{ ¶ 10} In Patton v. Flying J, Inc. (June 6, 1997), 6th Dist. No. WD–96–056, 1997 WL 327158, a customer was injured **663 when he swallowed a chicken bone that was present in a fast-food chicken sandwich. In finding in favor of the restaurant, the court stated that “common sense dictates that the presence of bone fragments in chicken meat is a natural enough occurrence that appellant reasonably should have expected and guarded against it.”

 

{ ¶ 11} We find that the chicken in the gordita sandwich consumed by Ruvolo was concealed in manner similar to chicken that is contained in a pot pie or a traditional sandwich. Accordingly, he should reasonably have anticipated the natural occurrence of bone fragments in his chicken meat. See Mix and *704 Patton, supra. Thus, the defendants were entitled to summary judgment as a matter of law.

 

[2] { ¶ 12} In his second assignment of error, Ruvolo maintains that the trial court erred in failing to compel the defendants to answer interrogatories regarding their inspection process for the chicken served to him at the Taco Bell restaurant. Taco Bell objected to the interrogatory as overly broad but agreed to provide the procedures manual supplied to its franchisees as long as Ruvolo signed a confidentiality agreement.

 

{ ¶ 13} Throughout this action Ruvolo routinely filed motions to compel. In his first and fifth motions to compel, he requested that the defendants be compelled to provide information regarding the preparation and inspection processes. In response, Taco Bell reiterated its position that it would provide such information upon Ruvolo’s signing a confidentiality agreement.

 

[3] { ¶ 14} A trial court’s ruling on discovery issues will not be reversed in the absence of an abuse of discretion. Baynard v. Oakwood Village (Oct. 16, 1997), Cuyahoga App. No. 71711, 1997 WL 638807. Here, the trial court did not abuse its discretion in denying Ruvolo’s motions to compel. A review of the record reveals that the defendants were being cautious yet cooperative throughout the discovery process. In addition, the parties could have easily remedied the discovery problem without invoking the trial court’s assistance.

 

[4] [5] { ¶ 15} Further, assuming arguendo that the trial court erred in failing to compel said discovery response, the error is harmless. As stated above, food preparers are not liable for the presence of bones in a chicken breast because it is a natural occurrence. Thus, the method of inspection used by the defendants would not alter the result herein. Accordingly, this assignment of error is overruled.

 

Judgment affirmed.

 

ANNE L. KILBANE, P.J., concurs.

TERRENCE O’DONNELL, J., concurs in judgment only.

All Citations

149 Ohio App.3d 701, 778 N.E.2d 661, 49 UCC Rep.Serv.2d 479, 2002 -Ohio- 5852

End of Document

© 2020 Thomson Reuters. No claim to original U.S. Government Works.

Attachment 5


Britto Central, Inc. v. Roberts, Not Reported in Fed. Supp. (2010)

© 2020 Thomson Reuters. No claim to original U.S. Government Works.

2010 WL 11571055

Only the Westlaw citation is currently available.

United States District Court, S.D. Florida.

BRITTO CENTRAL, INC., et al., Plaintiffs,

v.

Les ROBERTS, et al., Defendants.

CASE NO. 10-20579-CIV-SEITZ/O’SULLIVAN

|

Signed 07/20/2010

|

Entered 07/21/2010

Attorneys and Law Firms

Kaari-Lynn Sea Gagnon, Roberto Zarco, Robert Mitchell Einhorn, Zarco Einhorn Salkowski & Britto, P.A., Miami, FL, for Plaintiffs.

Ruben Yuri Alcoba, Miami, FL, Paul Leo Kobak, Miami Beach, FL, for Defendants.

ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS

PATRICIA A. SEITZ, UNITED STATES DISTRICT JUDGE

*1 THIS CAUSE is before the Court on Defendants Les Roberts, Jr., Silvia Castro, and Coral Gables Galleries, Inc.’s (“Defendants”) Motion to Dismiss (DE-12). Defendants aver that Plaintiffs do not allege they preregistered or registered the copyrights in the allegedly infringed works, and therefore, move to dismiss Count I (“Copyright Infringement”) of the Complaint. (DE-12, p. 1). Because Plaintiffs do not allege that they preregistered or registered their works prior to filing suit, the Court GRANTS Defendants’ Motion to Dismiss Count I (DE-12).

 

I. Background

Plaintiffs, Romero Britto, a world renowned artist, and Britto Central, Inc. (“Plaintiffs”) are the copyright owners of artistic works allegedly forged and sold as originals by Defendants. (DE-1, ¶ 9). Specifically, Plaintiffs allege that Defendants have “schemed and conspired to produce and sell counterfeit and unauthorized copies of Plaintiffs’ copyrighted works[,] which are purposely designed to be similar if not identical to Plaintiffs’ works, causing confusion among consumers.” (DE-1, ¶ 5). Accordingly, Plaintiffs bring this action for: (1) copyright infringement, (2) trademark infringement, unfair competition, and false designation of origin, (3) unauthorized use of name and reputation, (4) violations of Florida’s Deceptive and Unfair Trade Practices Act, § 501.201, Fla. Stat., and (5) civil conspiracy. (DE-1, ¶ 1). Defendants now move to dismiss Count I (“Copyright Infringement”) of Plaintiffs’ Complaint pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted because Plaintiffs failed to allege, as required by 17 U.S.C. § 411(a), that they secured copyright preregistrations or registrations for the allegedly infringed works prior to instituting this action.

 

II. Legal Standard for Motion to Dismiss

The Federal Rules of Civil Procedure do not require a plaintiff to set out in detail the facts upon which the complaint is based. Conley v. Gibson, 355 U.S. 41, 47 (1957). Rather, Fed. R. Civ. P. 8(a)(2) requires only a “short and plain statement of the claim showing that the pleader is entitled to relief,” allowing the defendant to have “fair notice of what the ... claim is and the grounds upon which it rests.” Id. However, “[w]hile a complaint attacked by a ... motion to dismiss does not need detailed factual allegations, a plaintiffs obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

 

III. Analysis

The Copyright Act states that “no civil action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title.” 17 U.S.C. § 411(a). Section 411(a)’s registration requirement mandates that a copyrighted work must be registered as a precondition to filing a claim. Reed Elsevier, Inc. v. Muchnick, 130 S. Ct. 1237, 1241 (2010). However, the Act provides four exceptions to this general rule, allowing courts to adjudicate infringement claims involving unregistered works when: (1) the work is not a U.S. work; (2) the infringement claim concerns the rights of attribution and integrity under 17 U.S.C. § 106A;1 (3) the copyright holder tries to register the work, but is refused; or (4) the author declares an intention to secure a copyright in a work and makes the registration within three months after the work’s first transmission under 17 U.S.C. § 411(c). Reed Elsevier, 130 S. Ct. at 1246.

 

A. Copyright Holder Must Register Copyright

*2 Defendants argue that Count I (“Copyright Infringement”) must be dismissed because Plaintiffs failed to allege they preregistered or registered the allegedly infringed works, and none of the exceptions to the general rule apply in the instant case. First, Defendants direct the Court to the plain language of 17 U.S.C. § 411(a), stating that preregistration or registration of a copyright is a precondition to filing an infringement suit, which Defendants assert the Supreme Court reaffirmed in Reed Elsevier, 130 S. Ct. at 1242. Additionally, Plaintiffs do not allege that they meet any of the exceptions to the general rule requiring registration. That is, Plaintiffs do not allege that the allegedly infringed works are not U.S. works, that the claim concerns the rights of attribution and integrity under 17 U.S.C. § 106A, that Plaintiffs tried to register the works, but were refused, or that Romero Britto declared his intention to secure a copyright in the works and made the registrations within three months after the works’ first transmissions. See 17 U.S.C. § 411(c). Accordingly, Plaintiffs fail to state a claim for copyright infringement.

 

B. Section 411(a)’s Registration Requirement Is A Precondition Even Where Plaintiffs Seek Injunctive Relief

Plaintiffs do not allege that they preregistered or registered the allegedly infringed works. Instead, Plaintiffs argue that their copyright action is viable because they seek injunctive relief and actual damages, as opposed to statutory damages. (DE-13, pp. 2-3). In support of their argument, Plaintiffs cite to Walker Mfg., Inc. v. Hoffmann, Inc., a case from the Northern District of Iowa, for the proposition that an action for injunctive relief or actual damages is viable even in the absence of copyright registration. 220 F. Supp. 2d 1024, 1039 (N.D. Iowa 2002) (citing Olan Mills, Inc. v. Linn Photo Co., 23 F.3d 1345, 1348-49 (8th Cir. 1994)).

 

With the exception of Walker Mfg., however, all of Plaintiffs’ cases are factually distinguishable. In those cases, both registered and unregistered works were the subjects of the infringement suits. See Olan Mills, 23 F.3d at 1348-49; see also Pac. & S. Co. v. Duncan, 744 F.2d 1490, 1499 n.17 (11th Cir. 1984) (finding that an injunction was proper because 17 U.S.C. § 502(a) provides for injunctive relief to prevent the infringement of a copyright, even if it is not the registered copyright that gives rise to the infringement action); see also Perfect 10, Inc. v. Amazon.com, Inc., 487 F.3d 701, 710 n.1 (9th Cir. 2007) (“Once a court has jurisdiction over an action for copyright infringement under section 411, the court may grant injunctive relief to restrain infringement of any copyright, whether registered or unregistered.”). Additionally, although the plaintiff in Walker Mfg. successfully recovered actual damages for the infringement of an unregistered work, in the absence of any registered works, leading authorities have criticized that decision for confusing prior decisions from the Eighth and Eleventh Circuits. 5 William F. Patry, Patry on Copyright § 17:78 (2010); David Nimmer, Nimmer on Copyright § 7.16[B][1][a][I] n.38.26d (2010) (labeling the ruling as erroneous). Therefore, this Court finds the Plaintiffs’ arguments2 unpersuasive.

 

IV. Conclusion

Although the Court views the allegations in the Complaint in the light most favorable to the Plaintiffs, as a matter of law, Plaintiffs have failed to state a claim for copyright infringement. The Copyright Act requires that the Plaintiffs preregister or register their works as a precondition to filing suit, 17 U.S.C. § 411(a), but Plaintiffs do not allege compliance with the registration requirement. Therefore, Defendants’ Motion to Dismiss (DE-12) must be granted. Although Plaintiffs have not indicated that they can cure this pleading defect, the Court will nonetheless grant Plaintiffs leave to amend their Complaint to allege compliance with the registration requirements of the Copyright Act. Accordingly, it is hereby

 

*3 ORDERED that

1. Defendants’ Motion to Dismiss (DE-12) is GRANTED.

2. Count I of the Complaint (DE-1) is DISMISSED WITHOUT PREJUDICE.

3. The Plaintiffs shall have leave, until July 30, 2010, to amend the Complaint (DE-1) if there are facts to support a claim consistent with this opinion.

 

DONE and ORDERED in Miami, Florida, this 20th day of July, 2010.

 

All Citations

Not Reported in Fed. Supp., 2010 WL 11571055

Footnotes

1

17 U.S.C. § 106A of the Visual Artists Rights Act of 1990 refers to the rights of authors to attribution and integrity in their copyrighted works of visual art.

2

Plaintiffs’ second argument—that 17 U.S.C. § 411(a) does not restrict a federal court’s subject matter jurisdiction with respect to infringement suits involving unregistered works—is inapposite. (DE-13, pp. 2-3). Subject matter jurisdiction is not at issue in the instant case. Defendants solely assert that Plaintiffs cannot state a claim for copyright infringement until Plaintiffs at least apply to register their copyrights in the allegedly infringed works. (DE-12, pp. 2-3).

End of Document

© 2020 Thomson Reuters. No claim to original U.S. Government Works.

Attachment 6


Class 4 Assignment – BUL4310

Grading rubric. You will either receive zero or one point for the assignment.

1 = all parts complete with a reasonable analysis, Turnitin.com either green or yellow, no block copying from cases or other internet sources. Do not copy the questions into what you turn in.

0 = nothing turned in, Turnitin.com red, or a really weak effort.

No late assignments accepted

Honor code applies.

Read chapters 7 and 8

Chapter 7 – Strict liability

Answer question 7-4 in the back of the chapter.

Relevant cases are in the zip file

Stark ex rel. Jacobsen v. Ford Motor Co.

Brief Ruvolo v. Homovich

Chapter 8 – Intellectual property law

Brief Kroma Makeup EU, LLC v. Boldface Licensing + Branding, Inc.

Read Britto v. Roberts and answer the questions below:

Why did Britto, Inc lose the case?

What could have been done to prevent the loss?

Attachment 7


How to Brief a Case Using the “IRAC” Method When briefing a case, your goal is to reduce the information from the case into a format that will provide you with a helpful reference in class and for review. Most importantly, by “briefing” a case, you will grasp the problem the court faced (the issue); the relevant law the court used to solve it (the rule); how the court applied the rule to the facts (the application or “analysis”); and the outcome (the conclusion). You will then be ready to not only discuss the case, but to compare and contrast it to other cases involving a similar issue. Before attempting to “brief” a case, read the case at least once. Follow the “IRAC” method in briefing cases: Facts* Write a brief summary of the facts as the court found them to be. Eliminate facts that are not relevant to the court’s analysis. For example, a business’s street address is probably not relevant to the court’s decision of the issue of whether the business that sold a defective product is liable for the resulting injuries to the plaintiff. However, suppose a customer who was assaulted as she left its store is suing the business. The customer claims that her injuries were the reasonably foreseeable result of the business’s failure to provide security patrols. If the business is located in an upscale neighborhood, then perhaps it could argue that its failure to provide security patrols is reasonable. If the business is located in a crime-ridden area, then perhaps the customer is right. Instead of including the street address in the case brief, you may want to simply describe the type of neighborhood in which it is located. (Note: the time of day would be another relevant factor in this case, among others). Procedural History* What court authored the opinion: The United States Supreme Court? The California Court of Appeal? The Ninth Circuit Court of Appeals? (Hint: Check under the title of the case: The Court and year of the decision will be given). If a trial court issued the decision, is it based on a trial, or motion for summary judgment, etc.? If an appellate court issued the decision, how did the lower courts decide the case? Issue What is the question presented to the court? Usually, only one issue will be discussed, but sometimes there will be more. What are the parties fighting about, and what are they asking the court to decide? For example, in the case of the assaulted customer, the issue for a trial court to decide might be whether the business had a duty to the customer to provide security patrols. The answer to the question will help to ultimately determine

* This applies to case briefs only, and not exams. Use the IRAC method in answering exams: Issue/Rule/Analysis/Conclusion.

whether the business is liable for negligently failing to provide security patrols: whether the defendant owed plaintiff a duty of care, and what that duty of care is, are key issues in negligence claims. Rule(s): Determine what the relevant rules of law are that the court uses to make its decision. These rules will be identified and discussed by the court. For example, in the case of the assaulted customer, the relevant rule of law is that a property owner’s duty to prevent harm to invitees is determined by balancing the foreseeability of the harm against the burden of preventive measures. There may be more than one relevant rule of law to a case: for example, in a negligence case in which the defendant argues that the plaintiff assumed the risk of harm, the relevant rules of law could be the elements of negligence, and the definition of “assumption of risk” as a defense. Don’t just simply list the cause of action, such as “negligence” as a rule of law: What rule must the court apply to the facts to determine the outcome? Application/Analysis: This may be the most important portion of the brief. The court will have examined the facts in light of the rule, and probably considered all “sides” and arguments presented to it. How courts apply the rule to the facts and analyze the case must be understood in order to properly predict outcomes in future cases involving the same issue. What does the court consider to be a relevant fact given the rule of law? How does the court interpret the rule: for example, does the court consider monetary costs of providing security patrols in weighing the burden of preventive measures? Does the court imply that if a business is in a dangerous area, then it should be willing to bear a higher cost for security? Resist the temptation to merely repeat what the court said in analyzing the facts: what does it mean to you? Summarize the court’s rationale in your own words. If you encounter a word that you do not know, use a dictionary to find its meaning. Conclusion What was the final outcome of the case? In one or two sentences, state the court’s ultimate finding. For example, the business did not owe the assaulted customer a duty to provide security patrols. Note: “Case briefing” is a skill that you will develop throughout the semester. Practice will help you develop this skill. Periodically, case briefs will be collected for purposes of feedback. At any time, you may submit your case brief(s) for feedback.