Grayhawk Homes, Inc. v. Woodruff Contracting Co., LLC et al

Filing 59

ORDER granting 53 Motion to Dismiss upon the terms described in the Order. Ordered by Judge Clay D. Land on 01/24/2013. (CGC)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
COLUMBUS DIVISION
GRAYHAWK HOMES, INC.,

*

Plaintiff,

*

vs.

*

WOODRUFF CONTRACTING CO., LLC,
et al.,

*

CASE NO. 4:11-CV-50 (CDL)
*
Defendants.
*
O R D E R
The dispute presented by Plaintiff’s Motion to Dismiss Its
Complaint

Against

Defendants

Aaron

Hampton,

Lemica

Hampton,

Josef Gardner and Valerie Gardner (ECF No. 53) reminds the Court
of a local television commercial for the sale of tires.
commercial,

the

owner

of

a

local

tire

store,

who

In the
appears

dismayed at his competitors’ attempts to complicate something
simple, is shown swinging from a tire that is connected to a
tree limb by a rope.
punch line:

In a colloquial drawl, he delivers the

“Tires just ain’t that complicated.”1

The same can

be said for the pending motion—it’s just not that complicated.
BACKGROUND
Plaintiff Grayhawk Homes, Inc. (“Grayhawk”) believed that
Defendant

Woodruff

Contracting

Co.,

1

LLC

(“Woodruff”)

and

its

In a good faith effort to avoid any invasion of anyone’s intellectual
property rights, the Court gives full attribution to “Bross Tire Sales” for
the production of the commercial.

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President, Defendant Michael Socci (“Socci”), used Grayhawk’s
copyrighted building plans when Woodruff constructed homes for
Defendants Aaron and Lemica Hampton (“Hamptons”) and Defendants
Josef and Valerie Gardner (“Gardners”).

Grayhawk filed the

present action against Woodruff and Socci, alleging copyright
infringement,
claiming

and

that

against

they

participated in it.

were

the

Hamptons

aware

of

and

the

the

Gardners,

infringement

and

The Hamptons filed a cross-claim against

Defendants Woodruff and Socci for indemnity should the Hamptons
be

found

against

liable
Grayhawk,

to

Grayhawk,

alleging

and

that

they

their

filed
use

of

a

counterclaim
the

plans

in

question should be declared not to infringe upon any rights of
Grayhawk and that they should recover their litigation expenses,
including

attorney’s

fees,

for

having

to

which they contend is meritless as to them.

defend

the

action,

Grayhawk has filed

a motion to dismiss its claims against the Hamptons and the
Gardners with prejudice.

The Gardners have filed no objection

to the motion; but the Hamptons oppose the motion, contending
that a dismissal may prejudice their ability to pursue their
cross and counter claims.
DISCUSSION
Rule 41 of the Federal Rules of Civil Procedure provides in
relevant part that after the opposing party files an answer and
absent a stipulation signed by all of the parties “an action may
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be dismissed at the plaintiff’s request only by court order, on
terms

that

the

41(a)(2).

court

considers

Furthermore,

“[i]f

proper.”
a

Fed.

defendant

R.

has

Civ.

pleaded

P.
a

counterclaim before being served with the plaintiff’s motion to
dismiss,

the

objection

only

independent
Hamptons’

action
if

may
the

be

dismissed

counterclaim

adjudication.”
counterclaim

Id.

can

over

can

The

remain

the

defendant’s

remain

Court

pending

finds

pending

for

that

for
the

independent

adjudication after Grayhawk’s claim against them is dismissed.
Moreover, the Court does not understand how the Hamptons would
have

any

against

type

of

Woodruff

indemnification
and

Socci

if

or

they

contribution
suffer

no

crossclaim

liability

to

Grayhawk; but to the extent that they allege a claim against
Woodruff and Socci for litigation expenses separate and apart
from

a

conceive

claim
of

no

for

indemnity

reason

as

to

or

contribution,

why

that

claim

the

Court

cannot

can

likewise

remain pending for independent adjudication after the dismissal
of Grayhawk’s claim against the Hamptons.

Consequently, the

Court grants Grayhawk’s motion to dismiss its claims against the
Hamptons and the Gardners with prejudice.

This dismissal is

conditioned upon the correctness of the Court’s conclusion that
such

dismissal

will

not

prejudice

the

Hamptons’

ability

to

pursue their claims against Grayhawk, Woodruff and Socci in this
action.

The Court hastens to add that it is not finding today
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that the Hamptons are legally entitled to the relief they seek
in their cross and counter claims.

The Court’s ruling simply

determines that they may pursue those claims in this action
notwithstanding the dismissal of Grayhawk’s claims against them,
and that today’s dismissal does not prejudice their ability to
recover on those claims.2
CONCLUSION
Plaintiff Grayhawk Homes Inc.’s Renewed Motion to Dismiss
Its

Claims

Against

Defendants

Aaron

Hampton,

Lemica

Hampton,

Josef Gardner and Valerie Gardner With Prejudice (ECF No. 53) is
granted upon the terms described in this Order.
The stay in this action is partially lifted so that the
parties may litigate the issues presented by the Hamptons’ cross
and

counter

claims.

Within

21

days

of

today’s

order,

the

parties shall submit a jointly proposed Amended Scheduling Order
that

includes

discovery

that

the

following:

is

necessary

deadline
and

2

relevant

for
to

any
the

additional
Hamptons’

The Court emphasizes that it will not be receptive to any arguments opposing
the Hamptons’ claims that are based upon the fact that Grayhawk’s claims
against them have been dismissed with prejudice, including any argument that
this dismissal extinguishes the case or controversy and thus deprives the
Court of subject matter jurisdiction.
Compare Already, LLC v. Nike, Inc.,
__S.Ct.__, 2013 WL 85300 (January 9, 2013)(holding that dismissal of
trademark infringement action accompanied by broad “covenant not to sue” made
counterclaim challenging validity of trademark moot with no mention by the
Court of existence or effect of a claim for litigation expenses). The Court
has specifically found that the Hamptons’ claims can remain pending for
independent adjudication in this action without any prejudice attributable to
today’s dismissal; if this finding is later determined to be erroneous, then
reconsideration of today’s ruling permitting dismissal may be appropriate.
Of course, an inability to establish entitlement to the relief sought
unrelated to today’s dismissal would not warrant reconsideration of today’s
order.

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claims;

deadline

for

the

filing

of

any

dispositive

motions

regarding those claims; the parties’ positions as to (a) whether
an evidentiary hearing or

jury

trial is required

should the

Hamptons’ claims not be decided as a matter of law; (b) the
timing

of

Hamptons’

any

such

claims

hearing

should

be

or

trial;

severed

and

from

(c)

whether

Grayhawk’s

the

claims

against Woodruff and Socci if a jury trial is necessary.

The

stay as to Grayhawk’s claims against Woodruff and Socci shall
otherwise remain in place until further order of the Court.

IT IS SO ORDERED, this 24th day of January, 2013.
S/Clay D. Land
CLAY D. LAND
UNITED STATES DISTRICT JUDGE

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