East Cobb Fastpitch, Inc. v. East Cobb Bullets Fastpitch, Inc. et al

Filing 100

ORDER denying 92 Motion for Summary Judgment. Signed by Judge Thomas W. Thrash, Jr on 7/29/2014. (ss)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
EAST COBB FASTPITCH, INC.,
Plaintiff,
v.

CIVIL ACTION FILE
NO. 1:13-CV-1285-TWT

EAST COBB BULLETS
FASTPITCH, INC., a Georgia
non-profit Corporation, et al.,
Defendants.

OPINION AND ORDER

This is a trademark infringement action. It is before the Court on the Defendant
Michael Syrop’s Motion for Summary Judgment [Doc. 92]. For the reasons set forth
below, the Defendant Michael Syrop’s Motion for Summary Judgment [Doc. 92] is
DENIED.
I. Background
The Plaintiff East Cobb Fastpitch, Inc. is a non-profit competitive softball
league originally formed by Gregory Schnute in 1996,1 and incorporated in 2001.2

1

Compl. ¶ 35.

2

Compl. ¶ 43; Syrop’s Statement of Facts ¶ 1.

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Schnute used the trademarks “East Cobb Bullets,” “East Cobb Bullets Fastpitch,” and
“EC Bullets” to represent his league.3 The individual Defendants in this action –
Michael Syrop, Stephen Palazzo, and Charles Daniels – were coaches within the
Plaintiff’s league.4 However, in early 2013, they left and formed a competing softball
league.5 In connection therewith, they formed two corporations named “East Cobb
Bullets Fastpitch” and “East Cobb Bullets.”6 In addition, they allegedly used the
Plaintiff’s trademarks to represent their new league in various advertisements.7 The
Plaintiff filed suit, asserting claims for trademark infringement against the individual
Defendants as well as their two corporate entities. Pursuant to a joint stipulation of
dismissal, all of the Defendants except Syrop were dismissed from this lawsuit. Syrop
now moves for summary judgment.
II. Legal Standard
Summary judgment is appropriate only when the pleadings, depositions, and
affidavits submitted by the parties show that no genuine issue of material fact exists

3

Compl. ¶¶ 37, 48.

4

Compl. ¶ 53.

5

Compl. ¶ 54.

6

Compl. ¶ 56.

7

Compl. ¶¶ 57-58.

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and that the movant is entitled to judgment as a matter of law.8 The court should view
the evidence and any inferences that may be drawn in the light most favorable to the
nonmovant.9 The party seeking summary judgment must first identify grounds that
show the absence of a genuine issue of material fact.10 The burden then shifts to the
nonmovant, who must go beyond the pleadings and present affirmative evidence to
show that a genuine issue of material fact does exist.11 “A mere ‘scintilla’ of evidence
supporting the opposing party’s position will not suffice; there must be a sufficient
showing that the jury could reasonably find for that party.”12
III. Discussion
A. Capacity to Sue
Syrop claims that the Plaintiff is not a valid legal entity, and thus it cannot bring
suit. Under FED. R. CIV. P. 17(b)(2), the capacity for a corporation to sue or be sued
is determined “by the law under which it was organized.” The Plaintiff was organized
under Georgia law. Under O.C.G.A. § 14-3-302(1), every non-profit corporation has

8

FED. R. CIV. P. 56(c).

9

Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59 (1970).

10

Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986).

11

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986).

12

Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir.1990).

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the power “[t]o sue . . . in its corporate name” unless such power has been restricted
in its Articles of Incorporation. O.C.G.A. § 14-3-140(6) defines a non-profit
corporation to simply be one that is “incorporated under or subject to the provisions
of [the Chapter governing non-profit corporations].” Here, Syrop acknowledges that
the Plaintiff was properly incorporated,13 and he presents no evidence indicating that
it has since been dissolved or otherwise officially terminated. Syrop also does not
contend that the Plaintiff’s Articles of Incorporation restrict its ability to bring suit.
Accordingly, the Plaintiff is a corporate entity with the power to file this action.
In response, Syrop first argues that the Plaintiff is not a valid legal entity
because it has no formal Board of Directors and no official by-laws as required by
Georgia law.14 This argument is without merit. Syrop cites to no authority suggesting
that a corporation which is not in compliance with these requirements ceases to be a
corporate entity capable of filing suit. Syrop then argues that the Plaintiff is essentially
Schnute’s “alter ego,” and thus it is not a valid legal entity. This argument is equally
without merit. The Plaintiff correctly points out that although the alter ego doctrine

13

Syrop’s Statement of Facts ¶ 1; Syrop’s Reply in Supp. of his Mot. for
Summ. J., at 5 (“Numerous examples exist that prove unequivocally that Plaintiff East
Cobb Fastpitch, Inc. is a corporation . . ..”).
14

To support his claim that the Plaintiff must have a formal Board of
Directors and official by-laws, Syrop cites to O.C.G.A. § 14-3-801(a) and O.C.G.A.
§ 14-3-206(a), respectively.
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may permit a party to hold an individual defendant liable for the activities of a
corporation,15 there is no authority stating that the doctrine may be used to prevent a
corporate entity from asserting its own claims.
In a final effort, Syrop claims that even if the Plaintiff is a legal entity capable
of filing suit, no authorized officer of the Plaintiff approved this lawsuit. Under
O.C.G.A. § 14-3-801(b), the corporate powers of a non-profit corporation “shall be
exercised by or under the authority of, and the business and affairs of the corporation
managed under the direction of, its board.” Here, Syrop argues that Schnute filed this
lawsuit on behalf of the Plaintiff even though his association with the Plaintiff had
been terminated. But the only piece of evidence cited by Syrop – a portion of
Schnute’s deposition – does not support this assertion.16 In fact, in his deposition,
Schnute testified that the attempt to have him ousted was unsuccessful.17 Accordingly,

15

See, e.g., Gwinnett Prop., N.V. v. G+H Montage GmbH, 215 Ga. App.
889, 893 (1994) (The alter ego “doctrine is generally used for the purpose of piercing
the corporate veil to hold an individual stockholder liable for debts incurred by the
corporation.”); Baillie Lumber Co. v. Thompson, 279 Ga. 288, 289 (2005) (“Under
the alter ego doctrine in Georgia, the corporate entity may be disregarded for liability
purposes when it is shown that the corporate form has been abused.”) (emphasis
added).
16

Syrop’s Statement of Facts ¶ 6.

17

See Schnute Dep. at 11-12.

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Syrop has failed to establish the absence of a genuine dispute regarding whether an
authorized officer of the Plaintiff approved this lawsuit.
B. Syrop’s Liability
Syrop briefly argues that he may not be liable because “the Plaintiff . . . was not
an intended third-party beneficiary to any . . . attorney-client relationship which may
have existed between the Co-Defendant [Syrop] and the other co-Defendants.”18 This
misunderstands the Plaintiff’s argument. The Plaintiff is arguing that Syrop is directly
liable for trademark infringement because he prepared the incorporation documents
for the two allegedly infringing corporate entities.19 The Plaintiff also argues that
Syrop was partially responsible for the use of the Plaintiff’s trademarks – e.g., in
advertisements – in connection with the infringing corporate entities.20 In his Motion,

18

Syrop’s Mot. for Summ. J., at 33.

19

Pl.’s Resp. to Syrop’s Mot. for Summ. J., at 12-13.

20

Id.; Compl. ¶¶ 57-58.

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Syrop supplies no evidence to dispute these allegations.21 Thus, Syrop’s Motion for
Summary Judgment should be denied.
IV. Conclusion
For these reasons, the Court DENIES the Defendant Michael Syrop’s Motion
for Summary Judgment [Doc. 92].
SO ORDERED, this 29 day of July, 2014.

/s/Thomas W. Thrash
THOMAS W. THRASH, JR.
United States District Judge

21

Syrop claims that the Plaintiff’s evidence is insufficient on this point.
(Syrop’s Reply in Supp. of his Mot. for Summ. J., at 10-12.) This is incorrect. Even
though the Plaintiff’s evidence consists of Schnute’s own testimony, (Syrop’s Mot.
for Summ. J., Ex. D, G), “Courts routinely and properly deny summary judgment on
the basis of a party’s sworn testimony even though it is self-serving.” Price v. Time,
Inc., 416 F.3d 1327, 1345 as modified on denial of reh’g, 425 F.3d 1292 (11th Cir.
2005). And given that Syrop has supplied no evidence in response, he has failed to
establish the absence of a genuine dispute regarding whether he was responsible for
the infringement of the Plaintiff’s trademarks.
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