United States District Court, W.D. Virginia, Roanoke Division
Michael F. Urbanski, Chief U.S. District Judge
matter comes before the court on a number of motions filed by
defendants Hannabass and Rowe, Ltd. ("Hannabass")
and Lindsay Michelle Stinson ("Stinson"). The first
of these is Hannabass and Stinson's (collectively,
"defendants") motion for summary judgment, filed on
June 19, 2019. ECF No. 48. Plaintiff Allesandro Cancian
("Cancian") responded to this motion on July 8,
2019. ECF No. 50. Defendants then filed a motion to strike
this response on June 9, 2019, ECF No. 51, and a supplemental
motion arguing . additional grounds to strike Cancian's
response on June 10, 2019, ECF No. 52. Cancian responded to-
both motions to strike on July 12, 2019. ECF No. 54.
Defendants replied to Cancian's brief in opposition to
the motion on July 12, 2019. ECF No. 54.
reasons articulated below, the court now
DENIES defendants' motions to strike,
ECF Nos. 51 & 52, and DENIES
defendants' motion for summary judgment, ECF No. 48.
took the photograph that would come to be titled
"Speeding Fall" ("Speeding Fall" or
"the photo") on July 11, 2011. ECF No. 49-1, at 1.
While the original photo was taken during the summer, Cancian
altered the colors of the leaves on the trees on either side
of die road so that die photo appeared to depict a roadway in
the fall, as die leaves were changing. Id. Cancian
also used a "smoodiing effect" on the road.
Id. Cancian's purpose in taking die photo was
artistic expression. ECF No. 49-8, at 1. He posted die photo
on the website "www.500px.com," a website that
"provides exposure and licensing opportunities to
photographers," sometime in March of 2012. Id.
The photo was registered witii the United States Copyright
Office on May 5, 2017.
is die sole owner and principal of Stinson Communications LLC
("Stinson Communications"), a Virginia limited
liability company. ECF No. 41-11, at 1. Stinson
Communications' primary business is to provide marketing
and website development to its customers. Id.
Hannabass is a corporation headquartered in Roanoke, Virginia
and in die business of auto body repair. ECF No. 16, at 1;
ECF No. 49-12, at 1. Hannabass contracted witii Stinson
Communications to develop and maintain a website providing
information on the services Hannabass provides, its hours of
operation, and certain informational articles. ECF No. 49-12,
at 1-2. Stinson owns die licensing rights to numerous stock
photographs through a variety of stock photograph companies.
ECF No. 49-11, at 1-2. In creating a page on Hannabass'
website for an article on safe driving in fall weather,
Stinson selected "Speeding Fall" from diese photos
because it appeared to depict a roadway in autumn.
February 7, 2017, Stinson was notified by counsel that
Cancian owned the "Speeding Fall" photo and that
use of that photo was prohibited. ECF No. 49-11. Stinson
removed the photo the same day she was so alerted.
Id. Cancian filed suit on June 20, 2018, pursuing
damages for Stinson's and Hannabass' infringement.
ECF No. 1.
to Federal Rule of Civil Procedure 56(a), the court must
"grant summary judgment if the movant 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); see Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986); Glynn v. EDO Corp., 710
F.3d 209, 213 (4th Cir. 2013). When making this
determination, the court should consider "the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with . .. [any] affidavits" filed by the
parties. Celotex, 477 U.S. at 322. Whether a fact is
material depends on the relevant substantive law.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). "Only disputes over facts that might affect the
outcome of the suit under the governing law will properly
preclude the entry of summary judgment. Factual disputes that
are irrelevant or unnecessary will not be counted." IcL
(citation omitted). The moving party bears the initial burden
of demonstrating the absence of a genuine issue of material
fact. See Celotex, 477 U.S. at 323. If that burden
has been met, the non-moving party must then come forward and
establish the specific material facts in dispute to survive
summary judgment. Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 586-87 (1986).
determining whether a genuine issue of material fact exists,
the court views the facts and draws all reasonable inferences
in the light most favorable to the non-moving party.
Glynn, 710 F.3d at 213 (citing Bonds v.
Leavitt, 629 F.3d 369, 380 (4th Cir. 2011)). Indeed,
"[i]t is an 'axiom that in ruling on a
motion for summary judgment, the evidence of the nonmovant is
to be believed, and all justifiable inferences are to be
drawn in his favor.'" McAirlaids, Inc. v.
Kimberly-Clark Corp., No. 13-2044, 2014 WL 2871492, at
*1 (4th Cir. June 25, 2014) (internal alteration omitted)
(citing Tolan v. Cotton. 134 S.Ct 1861, 1863 (2014)
(per curiam)). Moreover, "[credibility determinations,
the weighing of the evidence, and the drawing of legitimate
inferences from the facts are jury functions, not those of a
judge . ..." Anderson, 477 U.S. at 255.
However, the non-moving party "must set forth specific
facts that go beyond the 'mere existence of a scintilla
of evidence.'" Glynn, 710 F.3d at 213
(quoting Anderson, 477' U.S. at 252). Instead,
the non-moving party must show that "there is sufficient
evidence favoring the nonmoving party for a jury to return a
verdict for that party." Res. Bankshares Corp. v.
St. Paul Mercury Ins. Co., 407 F.3d 631, 635 (4th Cir.
2005) (quoting Anderson, 477 U.S. at 249). "In
other words, to grant summary judgment the [c]ourt must
determine that no reasonable jury could find for the
nonmoving party on the evidence before it." Moss v.
Parks Corp., 985 F.2d 736, 738 (4th Cir. 1993) (citing
Perini Corp. v. Perini Const. Inc., 915 F.2d 121,
124 (4th Cir. 1990)).
threshold matter, the court shall address two motions by
defendants to strike Cancian's memorandum in opposition
to the motion for summary judgment. ECF Nos. 51 & 52.
Defendants point out in their first motion to strike that
they timely filed their motion for summary judgment on June
19, 2019, in accordance with the deadlines set by the
Scheduling Order. ECF No. 48. Cancian, on the other hand,
filed his response to this motion on July 8, 2019, five days
after the July 3 deadline to respond to defendants'
motion. ECF No. 50. Defendants argue that, in light of
Cancian's tardy filing, the court should strike his
response to the motion. ECF No. 51.
the court applauds defendants' timeliness and discourages
Cancian's tardiness, a motion to strike is "a
drastic remedy which is disfavored by the courts and
infrequently granted." Clark v. Milam, 152
F.R.D. 66, 70 (S.D. W.Va. 1993). Federal Rule of Civil
Procedure 6(b) gives the court discretion to extend a
deadline after its passage upon a showing of "excusable
neglect"; "[e]xcusable neglect is not easily
demonstrated, nor was it intended to be . . . the burden of
demonstrating excusability lies with the party seeking the
extension and a mere concession of palpable oversight or
administrative failure generally has been held to fall short
of the necessary showing ..." Thompson v. E.I.
DuPont de Nemours & Co., 76 F.3d 530, 534 (4th Cir.
1995) (internal citations omitted). In considering whether a
party has presented excusable neglect, the court must
consider four elements: (1) "the danger of prejudice to
[the non-moving party]," (2) "the length of the
delay and its potential impact on judicial proceedings,"
(3) "the reason for the delay, including whether it was
in the reasonable control of the movant, and" (4)
"whether the movant acted in good faith."
Pioneer Inv. Servs. v. Brunswick Assocs. Ltd.
P'ship, 507 U.S. 380, 395 (1993).
professed excuse, that the reporting company hired to produce
a transcript of two key depositions failed to do so despite
repeated entreaties, see ECF No. 50-2, does perhaps fall into
the category of "administrative failure," but the
court sees no reason that a five-day delay will prejudice
defendants. Defendants themselves do not argue they have
suffered prejudice, except perhaps that the court will now
consider Cancian's late-filed arguments-a clearly
insufficient proffer of prejudice. See Walton v. Baker
Hughes Oilfield Operations. Inc., No. 1:16cv141, 2017 WL
5196643, at *4 (N.D. W.Va. Nov. 9, 2017) ("[A]lthough
Walton argues that he is prejudiced by the late-filed
response, he provides no basis for this argument other than
the possibility that the Court will heed its contentions
(citation omitted). Were this alone sufficient, every
late-filed brief would result in prejudice and consideration
of the factor would be futile.").
their supplemental motion to strike, defendants argue that
plaintiffs counsel's explanation for his late filing,
submitted in a sworn declaration accompanying his response,
is false. ECF No. 52. Counsel for Cancian states in his
declaration that he made repeated requests for the deposition
transcripts but did not hear back until after the deadline to
respond to defendants' motion. ECF No. 50-2. Defendants
assert in their supplemental motion to strike that counsel
for Cancian in fact only made one request, on July 3, 2019.
ECF No. 52, at 2. Defendants include a copy of the emailed
request with this motion and encourage the court to give
"the veracity of a declaration made by an attorney under
penalty of perjury, particularly at the expense of a third
party, . . . further scrutiny." Id. The court
can only assume that defendants' counsel is implying a
lack of good faith on the part of plaintiff s counsel.
responding, counsel for Cancian submits screenshots off his
cellphone, documenting numerous attempts to contact the
recording company by phone on several different days, as well
as the previously submitted emails. ECF No. 53-2. The court
will thus ignore any aspersions defendants' counsel
attempts to cast. Even if the court agrees that the third of
the above elements (the reason for the delay and whether it
was in the reasonable control of the movant) militates
towards granting the motion to strike, the other three sway
the court to consider Cancian's response. The court will
DENY the motions to strike.
first exhibit in support of his response to the motion for
summary judgment, however, gives the court pause. See ECF No.
50-1. In lieu of the deposition transcripts Cancian was
unable to obtain, Cancian's counsel offers handwritten
notes taken during the depositions and a sworn declaration
explaining the nature of these. ECF No. 50-2. In this
declaration, counsel also states that, should it become
necessary, he will testify to what the deponents said.
Id., at 1.
deposition upon oral examination is a valuable discovery tool
by which a witness gives oral testimony under oath."
Steven S. Gensler, Federal Rules of Civil
Procedure. Rules and Commentary, Rule 30 (2019). While
deponents make their statements under oath, the attorney
doing the deposing, and perhaps taking notes as he does so,
is under no such obligation to jot down only the unvarnished
truth. Courts do not rely upon unsworn, unsigned witness
statements in deciding motions for summary judgment.
Cetina v. Newbold Servs., No. CA 6:12-2222-TMC, 2013
WL 5596921, at *7 (D.S.C. Oct. 11, 2013) ("The unsworn,
unsigned witness statements that the Newbold Defendants
attached to their motion for summary judgment (many which
include handwritten notes) have not been submitted under
oath, and thus the Court will not rely on them in making its