Jones et al v. West Plains Bank & Trust Company et al
OPINION AND ORDER: Plaintiff's verbal motion for order under Fed.R.Civ.P. 54(b) entering final judgment on his copyright infringement claim is granted. The Court will enter a final judgment in favor of defendants dismissing with prejudice the c opyright infringement claim. Plaintiff's verbal motion for certification of the damagesissue under 28 U.S.C. § 1292(b) is granted. The Court's December 2, 2014 180 Order is amended to certify under 28 U.S.C. § 1292 (b) that it involves a controlling question of law as to which there is a substantial ground for difference of opinion and that an immediate appeal from the Order may materially advance the ultimate termination of this litigation. Signed by Judge Susan Webber Wright on 2/5/2015. (ks)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
DAVID LYNN JONES, Individually, and
d/b/a SKUNK DEVILLE MUSIC.,
WEST PLAINS BANK AND TRUST
COMPANY and ROGER THOMPSON,
Opinion and Order
During a telephone conference with the parties in this matter on December 16, 2014, plaintiff
moved the Court to certify the Court’s Orders of August 27, 2014, and December 2, 2014, as appealable
under Federal Rule of Civil Procedure 54(b) or, in the alternative, for a order enabling an appeal
pursuant to 28 U.S.C. § 1292(b). Defendants voiced no objection. For the reasons stated below, the
Court grants the motion.
Plaintiff David Lynn Jones is a singer and songwriter who lives in Hardy, Arkansas. He alleges
that he owns recording tapes that were being mixed by Bobby Roberts in a building in West Plains,
Missouri, using recording equipment also owned by Jones. When Roberts defaulted on a loan he had
with West Plains Bank and Trust Company (“the Bank”), the Bank seized possession of the disputed
property in September 2011. Later, Roger Thompson purchased the tapes and recording equipment at
a personal property sale. Mr. Jones claims that he informed the Bank that the recording equipment and
tapes belonged to him, not Roberts, and demanded that the Bank return the property to him. When the
Bank refused, Jones sued the Bank and Thompson for copyright infringement and conversion. Later
the Bank offered to return the tapes and equipment to Jones, but he refused to accept them.
Plaintiff claims defendants infringed his copyright by their possession and refusal to return the
recording tapes. In an Order dated March 26, 2014, the Court dismissed Jones’s copyright infringement
claim, and on August 27, 2014, denied Jones’s motion for reconsideration. In an Order dated December
2, 2014, the Court determined that the measure of damages for Jones’s conversion claim would be the
difference between the value of the property at the time of the conversion and the value of the property
at the time of return to Jones plus any interest on any royalties that would have been earned but for the
wrongful act. Plaintiff now seeks entry of immediate judgment or alternatively, a certification for an
interlocutory appeal on the copyright claim and a certification for an interlocutory appeal on the issue
of damages for the alleged conversion. If the Court is correct that Jones has no copyright claim and that
his measure of damages for conversion are limited as stated above, Jones’s potential damage award is
so minimal that the matter likely would be ended without going to the expense of a trial.
When deciding whether to grant Rule 54(b) certification, the court undertakes a two-step
analysis. Williams v. County of Dakota, Neb., 687 F.3d 1064, 1067 (8th Cir. 2012). First, the Court
must “determine that it is dealing with a final judgment . . . in the sense that it is an ultimate disposition
of an individual claim. Second, ‘[i]n determining that there is no just reason for delay, the district court
must consider both the equities of the situation and judicial administrative interests, particularly the
interest in preventing piecemeal appeals.’ ‘Certification should be granted only if there exists ‘some
danger of hardship or injustice through delay which would be alleviated by immediate appeal.” Id. at
Some of the relevant factors in determining whether there is a just reason for delay are:
(1) the relationship between the adjudicated and unadjudicated claims; (2) the
possibility that the need for review might or might not be mooted by future
developments in the district court; (3) the possibility that the reviewing court might be
obliged to consider the same issue a second time; (4) the presence or absence of a claim
or counterclaim which could result in setoff against the judgment sought to be made
final; (5) miscellaneous factors such as delay, economic and solvency considerations,
shortening the time of trial, frivolity of competing claims, expense, and the like.
Hayden v. McDonald, 719 F.2d 266, 269 (8th Cir.1983)(quoting Allis-Chalmers Corp. v. Philadelphia
Elec. Co., 521 F.2d 360, 364 (3rd Cir. 1975).
The Court dismissed Jones’s copyright infringement claim.
Because Jones’s damages are
based significantly on statutory damages for copyright infringement, an immediate appeal of the
copyright infringement claim would serve the needs of the parties. If the Court of Appeals should
determine the facts fail to establish a claim of copyright infringement, it is highly unlikely that this case
will proceed to trial.1
The Court finds no just reason for delaying the entry of judgment under Rule 54(b). The Court
will certify the dismissal of the copyright claim as final and direct entry of judgment on that claim.
Title 28 U.S.C. § 1292(b) permits a district court to certify an order for determination on
interlocutory appeal if it finds that the order from which an appeal is sought involves a controlling
question of law as to which there is a substantial ground for difference of opinion and an immediate
appeal may materially advance the ultimate termination of the litigation. “A motion for certification
must be granted sparingly, and the movant bears the heavy burden of demonstrating that the case is an
exceptional one in which immediate appeal is warranted.” White v. Nix, 43 F.3d 374, 376 (8th Cir.
The Court has not dismissed Jones’s conversion claim so technically it is not eligible for a Rule
54(b) certification. However, based on the record before the Court, it is highly questionable whether Jones
can establish damages under the measure of damages calculation this Court determines is appropriate.
1994). It is within the trial court’s discretion to grant or deny a motion for interlocutory appeal, and
also within the discretion of the court of appeals to certify the appeal. Id.
The Court finds the requirements of § 1292(b) have been met. The issue of the proper measure
of damages, if the converted property is copyrighted material, involves a controlling question of law
as to which there is substantial ground for difference of opinion.
Resolution of the issue would
advance the ultimate termination of this litigation. As stated previously, Jones’s potential damages
under the Court’s ruling would be minimal at best.
IT IS HEREBY ORDERED that plaintiff’s verbal motion for order under Fed.R.Civ.P. 54(b)
entering final judgment on his copyright infringement claim is granted. The Court will enter a final
judgment in favor of defendants dismissing with prejudice the copyright infringement claim.
IT IS FURTHER ORDERED that plaintiff’s verbal motion for certification of the damages
issue under 28 U.S.C. § 1292(b) is granted. The Court’s December 2, 2014 Order is amended to
certify under 28 U.S.C. § 1292 (b) that it involves a controlling question of law as to which there is a
substantial ground for difference of opinion and that an immediate appeal from the Order may
materially advance the ultimate termination of this litigation.
DATED this 5th day of February, 2015.
/s/Susan Webber Wright
United States District Judge
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