Slep-Tone Entertainment Corporation v. Shell et al

Filing 61

MEMORANDUM OPINION-re:R&R 57 . The court hereby ADOPTS the Report of the Magistrate Judge and ACCEPTS the Recommendations. Signed by Judge R David Proctor on 10/8/2013. (AVC)

FILED
2013 Oct-08 PM 02:36
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
SLEP-TONE ENTERTAINMENT
CORPORATION,
Plaintiff,
v.
SHERRY EHLEY, et al.,
Defendants.

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Case No.: 2:11-CV-03409-HGD

MEMORANDUM OPINION
On July 18, 2013, the Magistrate Judge’s Report and Recommendation was entered and
the parties were allowed therein fourteen (14) days in which to file objections to the
Recommendations made by the Magistrate Judge. On August 1, 2013, Defendant Jo-Rob, LLC
(“Jo-Rob” or “Defendant”), filed objections to the Magistrate Judge’s Report and
Recommendation.
One of Defendant’s objections is that the Magistrate Judge declined to dismiss Plaintiff’s
action against Defendant on the basis of improper joinder. Rule 21 of the Federal Rules of Civil
Procedure clearly states that the misjoinder of parties is not a proper ground for dismissal of an
action; however, the rule gives trial courts two alternative options for addressing instances of
misjoinder—courts can either drop (i.e., dismiss) an improperly joined party or sever any claims
against an improperly joined party. Fed.R.Civ.P. 21. In the present case, the Magistrate Judge
chose door number two: severance. The court finds no error in the Magistrate Judge’s decision.1

1

However, before the court will entertain a new, separate action against Defendant Jo-Rob, LLC (the
improperly joined defendant), Plaintiff must file a new complaint and pay the accompanying filing fee.

Defendant also objects that the Magistrate Judge incorrectly found that Plaintiff’s
trademarks are valid simply because they are registered. However, that argument is based upon
a misreading of the Report and Recommendation. In the briefing on the Motion for Summary
Judgment, no argument challenging the validity of Plaintiff’s trademarks was raised by
Defendant. To be sure, as noted by Defendant, no discovery has taken place, and Defendant
states it has not had an opportunity to investigate and/or contest the allegations in the amended
complaint. In addition, in ruling on a motion for summary judgment, a court is required to view
the evidence in the light most favorable to the non-moving party, in this case, Plaintiff.
Therefore, even if Defendant had raised a claim about the validity of Plaintiff’s trademarks in its
Motion for Summary Judgment, it is likely that any ruling on the Motion would have been
postponed so that discovery on that claim could be conducted and the record further developed.
Defendant has raised this new claim for the first time in its objections, and the court declines to
consider this claim at this juncture. Because summary judgment is being denied as to those
grounds actually asserted by Defendant in its Motion for Summary Judgment, Defendant will
have the opportunity to conduct discovery and file a new Motion for Summary Judgment on
whatever grounds it deems advisable, including any claim that Plaintiff’s trademarks are invalid,
at a later date.
After careful consideration of the record in this case and the Magistrate Judge’s Report
and Recommendation and Defendant’s objections thereto, the court hereby ADOPTS the Report
of the Magistrate Judge. The court further ACCEPTS the Recommendations of the Magistrate
Judge.

Defendant Jo-Rob, LLC’s Motion to Dismiss or, in the Alternative, Motion for Summary
Judgment (Doc. #46)2 is due to be rendered moot as to the Motion to Dismiss on the grounds of
improper joinder, inasmuch as the court has severed the claims against Defendant Jo-Rob, LLC,
from the claims by Plaintiff against the other defendants. Furthermore, Defendant’s Motion to
Dismiss or, in the Alternative, Motion for Summary Judgment is due to be denied as to all other
grounds asserted by Defendant its Motion for Summary Judgment because of the existence of
genuine issues of material facts. A separate order in accordance with this Memorandum Opinion
will be entered.
DONE and ORDERED on October 8, 2013.

_______________________________
R. DAVID PROCTOR
UNITED STATES DISTRICT JUDGE

2

Defendant Jo-Rob, LLC, initially filed a Motion to Dismiss or, in the Alternative, Motion for Summary
Judgment, in response to Plaintiff’s original complaint. (Doc. #31). After Plaintiff filed an amended complaint, JoRob filed the Renewed Motion to Dismiss or, in the Alternative, Motion for Summary Judgment (Doc. #46), which
incorporates Defendant’s previous Motion to Dismiss. (Id. at ¶ 4).