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Cancian v. Hannabass and Rowe, Ltd.

United States District Court, W.D. Virginia, Roanoke Division

July 19, 2019



          Michael F. Urbanski, Chief U.S. District Judge

         This 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.

         For the 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.


         Cancian 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 "," 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.[1]

         Stinson 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. Id.

         On 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.


         Pursuant 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).

         In 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)).


         As a 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.

         While 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).

         Cancian's 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.").

         In 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.

         In 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.

         Cancian's 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.

         "A 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 ...

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