Handshoe v. Abel

Filing 82

MEMORANDUM OPINION AND ORDER re 77 Order to Show Cause, 76 Order on Motion for Default Judgment. Defendant's abuse of process and misrepresentation claims are dismissed with prejudice. All additional claims and parties introduced in Plaintiff's Amended Complaint 80 are dismissed without prejudice. A separate final judgment will be enered herein. Signed by District Judge Keith Starrett on 1/8/2016 (scp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
DOUGLAS HANDSHOE

PLAINTIFF

V.

CIVIL ACTION NO. 1:14-CV-159-KS-MTP

DANIEL G. “DANNY’ ABEL and
CHRIS YOUNT

DEFENDANTS

MEMORANDUM OPINION AND ORDER
This matter is before the Court on its own orders [76][77] instructing Plaintiff Douglas
Handshoe (“Plaintiff”) to show cause why his remaining abuse of process claim should not be
dismissed for lack of subject matter jurisdiction and to amend his complaint in order to cure the
pleading defects of his misrepresentation claim under 17 U.S.C. § 512(f). The Court finds that
Plaintiff has not shown that subject matter jurisdiction exists for his abuse of process claim and that
this claim should be dismissed without prejudice. The Court further finds that Plaintiff has not stated
a claim for misrepresentation under § 512(f) upon which relief can be granted and that this claim
should therefore be dismissed with prejudice.
I. BACKGROUND
Plaintiff filed the current action with the Court on April 10, 2014, against Defendants Chris
Yount (“Yount”) and Daniel Abel (“Abel”). Plaintiff filed an Amended Complaint [27] with the
Court’s leave on March 13, 2015. In his Amended Complaint [27], Plaintiff brings claims of
misrepresentation under 17 U.S.C. § 512(f) against Yount and Abel, abuse of process against Yount
and Abel for the service of a court order on his web host, malicious prosecution against Yount and
Abel, and abuse of process against Yount and Abel for the filing of an appellant brief in a Louisiana
case. Abel and Yount are both residents of Louisiana.

Plaintiff is the publisher and owner of Slabbed New Media, LLC. On February 13, 2014,
Plaintiff published a blogpost entitled “Very disturbing child welfare issues raised in 24th JDC case,”
which included an image obtained from the then-unsealed case Yount v. Steitle pending in Louisiana
court. The image was alleged drawn by a minor child. On February 18, 2014, Yount, through his
lawyer Abel, obtained a court order in the pending Louisiana case and served it upon Plaintiff’s web
host in Texas in order for the post to be taken down.
In response, on February 21, 2014, Plaintiff published another post titled “Ready, Willing and
unAbel: A Super 8 Motel Legal Department Update.” This post contained a hyperlink to the same
image as the previous post. On February 28, 2014, Plaintiff received a Digital Millennium Copyright
Act (“DMCA”) takedown notice from his web host, which was issued after Yount and Abel, on
behalf of the minor child, represented that the image infringed on the child’s copyright.
On March 20, 2014, Abel filed a defamation suit against Plaintiff on behalf of Yount and on
behalf of an unnamed minor child. (See Louisiana Petition [27-1].) On July 28, 2014, the Louisiana
court dismissed the defamation suit under Louisiana’s anti-SLAPP statute. On September 17, 2014,
Abel filed an appeal on Yount’s behalf with the Louisiana Fifth Circuit Court of Appeals.
On November 6, 2014, Abel was suspended from the practice of law. On January 20, 2015,
Yount filed his appellate brief pro se. Plaintiff filed a motion to strike.
The claims against Yount for malicious prosecution and abuse of process for filing the
appellant brief in the Louisiana action have been dismissed for lack of personal jurisdiction. (Order
[69] at p. 10.) Default [74] was entered by the Clerk of the Court against Abel on December 11,
2015, for failure to appear. Plaintiff subsequently filed a Motion for Default Judgment [75] on
December 14, 2015.

In support of his Motion for Default Judgment [75], Plaintiff submitted an Affidavit [75-1]
claiming that his damages in this case was $75,000. On December 16, 2015, the Court denied
Plaintiff’s Motion for Default Judgment [75] against Abel and dismissed the claims against him for
abuse of process for the appellant brief and malicious prosecution for lack of personal jurisdiction
and the abuse of process for service of the court order for lack of subject matter jurisdiction. (see
Order [76].) Though the Court denied default judgment on the misrepresentation claim under 17
U.S.C. § 512(f) for failure to state a claim, because this claim was identical to the pending claim
against Yount, Plaintiff was afforded twenty-one days to amend this claim as to both defendants
before a dismissal would issue. (Id. at pp. 6-7.) The Court issued a separate Order to Show Cause
[77], directing Plaintiff to show why his remaining abuse of process claim against Yount should not
be dismissed for lack of subject matter jurisdiction for failure to meet the jurisdictional amount.
II. DISCUSSION
The Court notes at the onset of its discussion that Plaintiff’s amendments to his complaint
exceed the allowance made by the Court. Plaintiff was given permission to amend his complaint only
to cure the defects in his misrepresentation claim under § 512(f). Plaintiff exceeded this scope by
adding claims, parties, and superfluous facts to his Amended Complaint [80]. The Court will strike
these amendments and all added claims and parties will be dismissed without prejudice. Plaintiff
is warned that the proper avenue for adding such claims and parties is through a motion for the
Court’s leave or with opposing party’s written consent pursuant to Federal Rule of Civil Procedure
15(a)(2).
A.

Subject Matter Jurisdiction of Abuse of Process Claim

In order for diversity jurisdiction to exist, the sum in controversy must “exceed[] the sum or
value of $75,000, exclusive of interest and costs.” 28 U.S.C. § 1332(a). In Plaintiff’s sworn
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Affidavit [75-1], he represented that his claims against Abel, who is jointly and severally liable for
the same claims against Yount, entitled him to a damages award amounting to $75,000, which does
not exceed jurisdictional amount required for diversity jurisdiction. In his Response [79] to the
Court’s Order to Show Cause [77], Plaintiff claims that, in his Motion for Default Judgment [75], he
intended to plead the minimum amount in order to secure the Court’s jurisdiction. His failure was
due to a misreading of the law that, he argues, should be excused because of his status as a pro se
litigant. He further claims that a detailed calculation of his claims shows that his damages amount
to at least $113,802.
Plaintiff submitted a signed, sworn Affidavit [75-1] representing that his damages in this
action amounted to $75,000. In doing so, Plaintiff represented by implication that this amount was
calculated based on the total amount of damages which he incurred and to which he was entitled
under law. Plaintiff’s argument now amounts to an admission that he previously made false
representations concerning his damages to the Court and that, in doing so, willingly forewent an
additional potential award of about $40,000 from Abel in default judgment. The Court will not
accept this argument. The Court will take Plaintiff’s signed and sworn Affidavit [75-1] as true, and
find that the damages claimed in this action amount to $75,000. As such, the jurisdictional amount
required for diversity jurisdiction under 28 U.S.C. § 1332(a) is not met, and Plaintiff’s claim of abuse
of process must be dismissed without prejudice for want of subject matter jurisdiction.
B.

Misrepresentation under 17 U.S.C. § 512(f)

A person is liable under 17 U.S.C. § 512(f) if he “knowingly materially misrepresents under
this section . . . that material or activity is infringing.” In his new amendments relating to this claim,
Plaintiff contends that he had a right to the image in controversy based upon it appearing in an

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unsealed and public court document. As such, he argues that his use of the image was not infringing,
and Yount and Abel’s contention that it amounted to a misrepresentation under § 512(f).
From the Court’s reading of the Amended Complaint [80], it appears that Plaintiff is claiming
that, because the image appears in an unsealed and public court document, the image has entered the
public domain and therefore no copyright protection exists. However, a copyrighted work does not
lose its copyright protection simply because it is easily available to the public. See Kepner-Tregoe,
Inc. v. Leadership Software, Inc., 12F.3d 527, 537 (5th Cir. 1994) (“[P]rotected expression does not
lose its protection simply because it is widely disseminated. If [the expression] is widely discussed,
described, and reproduced, it is presumably with the permission of the copyright holder . . . [or]
because such discussion, description, and reproduction constitutes fair use.”) (emphasis in original).
Given that there is no dispute that the minor child drew the image, and therefore held a
copyright in it under 17 U.S.C. § 102(a)(5), nor is there a dispute that Plaintiff posted the image
without permission of the copyright owner or his agent, the only avenue through which Plaintiff
could have used the image was through the doctrine of fair use. See 17 U.S.C. §§ 106-07. Plaintiff
does not plead that his use of the image constituted fair use. More importantly, though, Plaintiff does
not allege that Yount and Abel did not in good faith consider any fair use defense he may have had
before issuing the DMCA takedown notice. See Lenz v. Universal Music Corp., 801 F.3d 1126,
1132-33 (9th Cir. 2015) (holding that the DMCA requires copyright owners to consider fair use
before issuing a takedown notice under § 512). In fact, Plaintiff’s Amended Complaint [80] excerpts
the takedown notice, which states that Yount and Abel did “have a good faith belief that use of the
material in the manner complained of is not authorized by the copyright owner, its agent, or the law.”
(Amended Complaint [80] at p. 11 (emphasis added).) As fair use is an authorized use under
copyright law, see Lenz., 801 F.3d at 1132, the Court can only assume, absent any contrary
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allegations from Plaintiff, that Yount and Abel considered in good faith the applicability of the fair
use doctrine in forming this belief. The Court therefore does not find that Plaintiff has sufficiently
pleaded a misrepresentation under § 512(f).
The Court has already afforded Plaintiff an opportunity to amend his complaint as it pertains
to his § 512(f) claim in order to state a claim upon which relief could be granted. The Court warned
that failure to do so would result in a dismissal with prejudice. As Plaintiff’s amendments do not
state a claim upon which relief can be granted, this claim will be dismissed with prejudice.
III. CONCLUSION
IT IS THEREFORE ORDERED AND ADJUDGED that Plaintiff’s abuse of process claim
against Yount is dismissed without prejudice for lack of subject matter jurisdiction.
IT IS FURTHER ORDERED AND ADJUDGED that Plaintiff’s misrepresentation claim
against Yount and Abel under 17 U.S.C. § 512(f) is dismissed with prejudice for failure to state a
claim upon which relief can be granted.
IT IS FURTHER ORDERED AND ADJUDGED that all additional claims and parties
introduced in Plaintiff’s Amended Complaint [80] are dismissed without prejudice due to Plaintiff’s
failure to seek leave of Court to amend or to gain opposing parties’ written consent.
As all claims have been dismissed in this action, the Court will issue a separate final judgment
pursuant to Federal Rule of Civil Procedure 58.
SO ORDERED AND ADJUDGED this the 8th day of January, 2016.

s/ Keith Starrett
UNITED STATES DISTRICT JUDGE

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