MURPHY v. MILLENNIUM RADIO GROUP LLC et al

Filing 97

MEMORANDUM OPINION filed. Signed by Judge Michael A. Shipp on 6/14/2013. (eaj)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

PETER MURPHY,
Plaintiff,
Civil Action No. 08-1743 (MAS) (TJB)

v.

MILLENNIUM RADIO GROUP LLC,
CRAIG CARTON and RAY ROSSI,

MEMORANDUM OPINION

Defendants.

SHIPP, District Judge

This matter comes before the Court upon Defendants' Partial Motion for Summary
Judgment ("Defendants' Motion"). (ECF No. 81.) Rather than filing substantive opposition,
Plaintiff Peter Murphy ("Plaintiff') filed a Motion pursuant to Federal Rule of Civil Procedure
("Rule") 56(d). (ECF No. 84.) Defendants filed Opposition to Plaintiffs Motion. (ECF No. 86.)
Plaintiff filed a Reply. (ECF No. 87.) Th_e Court has carefully considered the Parties'
submissions and decided the matter without oral argument pursuant to Rule 78. For the reasons
stated below, and for other good cause shown, Plaintiffs Motion is GRANTED in part and
DENIED in part. Defendants' Motion is administratively terminated in lieu of the discovery
ordered below.
I.

Background

Plaintiffs Complaint contains three broad categories of claims: "(a) copyright
infringement, pursuant to 17 U.S.C. § 501 (Counts I-VIII ofthe Complaint); (b) violations ofthe
Digital Millennium Copyright Act ("DMCA"), pursuant to 17 U.S.C. § 1202 (Counts IX-XII)

and (c) defamation of character, under New Jersey common law (Counts XIII-XV)." (Boyd
Decl., ~ 17, ECF No. 84-2.)
This matter has a lengthy history, including an appellate review by the Third Circuit. See

Murphy v. Millennium Radio Group LLC, 650 F.3d 295 (3d Cir. 2011). The Third Circuit made
three determinations: 1) Plaintiffs Digital Millennium Copyright Act ("DMCA") claim pursuant
to 17 U.S. C. § 1202(b) could proceed; 2) the posting of an unaltered image owned and produced
by Plaintiff on Defendants' website was not fair use; and 3) Plaintiff was entitled to "adequate
discovery" regarding his defamation claims. No further recitation of the procedural and
substantive history is required to adjudicate Plaintiffs Motion. The issue before the Court is a
rather limited one.
Defendants, following remand from the Third Circuit, filed a Motion for Partial Summary
Judgment ("Defendants' Motion") on December 14, 2012. As noted in the preamble, rather than
file substantive opposition, Plaintiff sought a continuance of Defendants' Motion pursuant to
Rule 56(d) alleging that further discovery is required in order to oppose Defendants' Motion.

II.

Legal Standard
Rule 56 outlines the standard for summary judgment. Summary judgment is appropriate

if the record shows "that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter oflaw." Fed. R. Civ. P. 56(a). A district court considers the facts
drawn from the "materials in the record, including depositions, documents, electronically stored
information, affidavits ... or other materials" .and must "view the inferences to be drawn from
the underlying facts in the light most favorable to the party opposing the motion." Fed. R. Civ. P.
56(c)(1)(A); Curley v. Klem, 298 F.3d 271, 276-77 (3d Cir. 2002) (internal quotations omitted).
The Court must determine "whether the evidence presents a sufficient disagreement to require

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submission to a jury or whether it is so one-sided that one party must prevail as a matter of law."

Anderson v. Liberty Lobby, 477 U.S. 242, 251-52 (1986). More precisely, summary judgment
should only be granted if the evidence available would not support a jury verdict in favor of the
nonmoving party. Id. at 248-49. "[T]he mere existence of some alleged factual dispute between
the parties will not defeat an otherwise properly supported motion for summary judgment; the
requirement is that there be no genuine issue of material fact." Id. at 247-48.
Rule 56(d) states: "If a nonmovant shows by affidavit or declaration that, for specified
reasons, it cannot present facts essential to justify its opposition, the court may: (1) defer
considering the motion or deny it; (2) allow time to obtain affidavits or declarations or to take
discovery; or (3) issue any other appropriate order." Properly supported Rule 56(d) motions are
granted "as a matter of course." Doe v. Abington Friends Sch., 480 F.3d 252, 257 (3d Cir. 2007)
(citing St. Surin v. Virgin Islands Daily News, Inc., 21 F.3d 1309, 1314 (3d Cir. 1994)) (both
cases refer to the previous codification of Rule 56(d) at Rule 56(±)). "This is particularly so when
there are discovery requests outstanding or relevant facts are under the control of the moving
party." Id. (citations omitted). Stated differently, "[i]f discovery is incomplete in any way
material to a pending summary judgment motion, a district court is justified in not granting the
motion [for summary judgment]." Id. (citing Miller v. Beneficial Mgmt. Corp., 977 F.2d 834,
845-46 (3d Cir. 1992)).
The Third Circuit has "interpreted this provision to require 'a party seeking further
discovery in response to a summary judgment motion [to] submit an affidavit specifying, for
example, what particular information is sought; how, if uncovered, it would preclude summary
judgment; and why it has not previously been obtained.'" Penn. Dep 't of Pub. Welfare v.

Sebelius, 674 F.3d 139, 157 (3d Cir. 2012) (alteration in original) (citing Dowling v.

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Philadelphia, 855 F.2d 136, 139-40 (3d Cir. 1988)). Failure to submit the required affidavit is
fatal to a Rule 56( d) motion. !d.

III.

Analysis
Defendants' Motion seeks summary judgment on the DMCA claims and regarding an

issue of damages related to the defamation claims. In order to determine if Rule 56(d) precludes
disposition of those claims, an analysis of the basis under which Defendants have moved (and
whether further discovery would alter any adjudication of that analysis) must be conducted.

A.

Plaintiff's DMCA Claims

Generally, Defendants contend that 1) the uncontested facts preclude a finding that they
had the requisite intent required by 17 U.S.C. § 1202, and 2) that the doctrine of fair use "as to
the 26 listener-altered images precludes any § 1202 claim." (Defs.' Opp 'n 7.) Defendants
contend that these are purely legal questions. (!d.) Plaintiff argues that he has submitted a
properly supported Rule 56(d) affidavit and that further discovery is required as to the factual
bases underlying Defendants' arguments. According to Plaintiff, the required discovery includes
five depositions and a forensic audit of the two computers utilized by the webmasters employed
by Defendants at the time of the underlying events. (Boyd Decl., ,, 30-31.)

1)

Intent and 17 U.S.C. § 1202(b)

Defendants state that "Plaintiff faces an insurmountable barrier to proving the kind of
knowing misconduct required to support his claim that Defendants violated the DMCA by either
removing [copyright management information ("CMI")] (§ 1202(b)(1)) or distributing any copy
of Plaintiffs work knowing that CMI had been removed (§ 1202(b)(3))." (Defs.' Mot. 8.)
According to Defendants, § 1202(b) requires a strong showing of intent. (!d.) Section 1202(b)
states:

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No person shall, without the authority of the copyright owner or the law(1) intentionally remove or alter.any copyright management information,
(2) distribute or import for distribution copyright management information
knowing that the copyright management information has been
removed or altered without authority of the copyright owner or the
law, or
(3) distribute, import for distribution, or publicly perform works, copies of
works, or phonorecords, · knowing that copyright management
information has been removed or altered without authority of the
copyright owner or the law,
knowing, or ... having reasonable grounds to know, that it will induce, enable,
facilitate, or conceal an infringement of any right under this title.
As correctly noted by Plaintiff, in order to be liable under § 1202(b), a defendant must
know, or have reason to know, that his actions "will induce, enable, facilitate, or conceal an
infringement of any right" granted under United States copyright law. 17 U.S.C. § 1202(b).
Defendants frame the issue in this manner:
Thus, to establish liability under (b)(1 ), Plaintiff must prove not only that
Defendants intentionally removed CMI without authorization but also that they
did so having in mind that their action would induce, enable[,] facilitate or
conceal an infringement. To establish liability under (b )(3), Plaintiff has an even
higher burden. He must prove that a violator distributed a copyright owner's work
knowing that CMI has been removed without authority and having reasonable
grounds to know that such action will induce, enable or conceal an infringement.
In other words, under either provision, Defendants must essentially have been
contemplating the fraudulent act of taking one person's work and presenting it in
a manner that would persuade others to 1nfringe the work.
(Defs.' Mot. 9.)
Speaking further to § 1202(b)(3), Defendants contend that the undisputed fact that they
never presented the Plaintiffs image as their own and identified the source (although not the
copyright holder) as New Jersey Monthly Magazine, "defeats any possible argument that

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[Defendants] posted the photograph knowing that any CMI had been removed or having reason
to know that posting it would induce infringement." (Id. at 10.) The Court disagrees.
Plaintiff argues, and the Court agrees, that the discovery it seeks, namely depositions of
WKXW's Station Manager Eric Johnson and two webmasters, may impact the "intent" analysis
under § 1202(b). The Court agrees with Plaintiff that "Defendants' discovery responses do not
explain the circumstances of Defendants' scanning of the photograph, or their subsequent uses
and removal of the magazine credit, [and] Plaintiff does not possess the necessary information to
demonstrate this dispute in his response to" Defendants' Motion. (Pl.'s Br. 15.) As such, the
question of intent vis-a-vis § 1202(b)(1) cannot be determined by the Court. As such, further
discovery shall be conducted.
Plaintiff is GRANTED the right to depose WKXW's Station Manager Eric Johnson, as
well as WKXW's webmasters Tom Stark and Jose Valentin. Depositions ofthose indivuals shall
be limited to issues related to Plaintiffs DMCA claim. Furthermore, as requested by Plaintiff in
paragraph 31 of the Declaration of Autumn Witt Boyd, Defendant shall "engage a forensics
expert to examine the laptop of the two webmasters [used] during the relevant time periods in
2006-2007 for any electronically stored information relating to the scanning and uploading of
Murphy's photograph to the Station website, as well as the solicitation, receipt, and uploads of
listener-altered versions of Murphy's photograph." If the laptops are no longer available for
examination, Defendants shall submit a certification to the Court outlining, to the best of their
ability, what occurred to the laptops since July 2012, when Defendants allegedly agreed to
engage a forensics expert to examine the laptops. (See Boyd Decl.

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~

31.)

B.

Plaintiff's Defamation Claim

As an initial matter, the opinion of the Third Circuit in this case seemingly determines
resolution of this question. See Murphy, 650 · F.3d at 310 ("[W]ith respect to the defamation
claims, the District Court's decision is vacated and remanded to permit Murphy to conduct
adequate discovery."). Defendants, however, contend that "the Third Circuit Opinion language
relating to discovery on the defamation claim [was] discussed in the context of Defendants'
argument in [their} previous Summary Judgment motion relating to the words spoken, namely
whether they were rhetorical hyperbole and whether implying someone is homosexual is
defamatory." (Defs.' Opp'n 31.) Defendants argue that their current Partial Motion for Summary
Judgment solely "relates to Plaintiffs failure to establish actual damages, and, thus, his lack of
entitlement to compensatory or punitive damages." (Id.) As such, Defendants' argue, discovery
regarding Carton and Rossi's alleged statements are not required for purposes of resolving
Defendants' Motion. (Id.) The Court agrees.
Plaintiffs defamation claims arise from two allegations: 1) that Plaintiff is not the type of
person one would want to do business with and that he is prone to sue his business associates,
and 2) that Defendants Rossi and Carton allegedly inferred Plaintiff was homosexual. Regarding
the former, which the Court and the Parties agree would qualify as slander per se, Plaintiff is
limited to nominal damages unless he can proffer evidence of actual damages. See WJA. v.
D.A., 210 N.J. 229, 233 (2012). Regarding the alleged inference that Plaintiff is homosexual,
Defendant contends that Plaintiff cannot obtain presumed damages because allegations of
homosexuality do not constitute slander per se, and therefore, actual damages are required.
(Defs.' Opp'n 18 n.2.)

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Those positions, contrary to Plaintiffs arguments otherwise, do not require Plaintiff to
obtain additional discovery from Defendants. The critical issue raised in Defendants' Motion
revolves around damages and damages only. Additional discovery, especially in the sense sought
by Plaintiff, e.g. deposition of Rossi and Carton regarding the actual content of their statements,
especially as to the alleged inference of homosexuality, are not implicated in Defendants'
Motion. As such, Plaintiff is denied any further discovery from Defendants regarding the content
of the statements made by Rossi and/or Carton. Plaintiff has indicated that he is currently
investigating "actual damages he suffered from Defendants' [alleged] defamatory statements."
(Pl.'s Reply 15.) That investigation shall continue while the discovery regarding Plaintiffs
DMCA claim occurs.
IV.

Conclusion
For the reasons set forth above, and for other good cause shown, it is hereby ordered that

Plaintiffs Motion is GRANTED in part and DENIED in part. Defendants' Motion is
ADMINISTRATIVELY TERMINATED. Upon completion of the discovery ordered above,
Defendant may refile its Partial Motion for Summary Judgment or any other appropriate
dispositive motion. The depositions ordered above shall be completed no later than September
30, 2013. The forensic expert report ordered above shall be provided to Plaintiff by October 15,
2013. An Order consistent with this Opinion will be entered.

Dated: June

MICHAEL A. SHIPP
UNITED STATES DISTRICT JUDGE

J/Jol3

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