Perry v. Entertainment One (Koch Records), et al

Filing 58

ORDER denying 55 Motion to Set Aside Judgment. Signed by Senior Judge W. Earl Britt on 6/23/2014. Copy of order mailed to plaintiff via US Mail at address on record. (Marsh, K)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
NORTHERN DIVISION
No. 2:13-CV-00022-BR
ADAM L. PERRY,
Plaintiff,
v.
LENCH MOB RECORDS, et al.,
Defendants.

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ORDER

This matter is before the court on plaintiff’s 12 May 2014 pro se motion to set aside
judgment or final verdict. (DE # 55.) Defendant Entertainment One U.S. LP (“Entertainment
One”) filed a response in opposition to the motion. (DE # 56.)
By way of brief background, plaintiff initially filed this action in state court alleging that
he is improperly identified as the writer and/or composer on an album released by the defendant
entities and performed by the individual defendant. Entertainment One removed the action to
this court. On 23 April 2014, the court denied plaintiff’s motions to remand the case to state
court and granted summary judgment in favor of defendants. (DE # 48.) In short, the court
found that diversity jurisdiction under 28 U.S.C. § 1332(a) exists and that plaintiff had not come
forward with sufficient evidence to show that he is entitled to relief. (Id.)
With the instant motion, plaintiff requests that the court set aside this judgment based on
“newly discovered evidence.” (Mot., DE # 55, at 1.) The so-called new evidence is plaintiff’s
contention that defendants invaded his privacy by misappropriating his likeness, which, plaintiff
claims, “was unforeseeable at the moment of the defendant[’]s motion.” (Id. at 4.) Although
plaintiff does not identify any particular Federal Rule of Civil Procedure which would permit the

court to set aside its earlier judgment, it appears he seeks relief under either Rule 59(e) or,
alternatively, Rule 60(b). Because plaintiff filed his motion within 28 days after entry of the
judgment, the court construes the motion as one pursuant to Rule 59(e). See Katyle v. Penn
Nat’l Gaming, Inc., 637 F.3d 462, 471 n.4 (4th Cir. 2011).
Although Rule 59(e) does not itself provide a standard
under which a district court may grant a motion to alter or amend a
judgment, [the Fourth Circuit Court of Appeals has] previously
recognized that there are three grounds for amending an earlier
judgment: (1) to accommodate an intervening change in
controlling law; (2) to account for new evidence not available at
trial; or (3) to correct a clear error of law or prevent manifest
injustice. Thus, the rule permits a district court to correct its own
errors, “sparing the parties and the appellate courts the burden of
unnecessary appellate proceedings.” Rule 59(e) motions may not
be used, however, to raise arguments which could have been raised
prior to the issuance of the judgment, nor may they be used to
argue a case under a novel legal theory that the party had the
ability to address in the first instance. Similarly, if a party relies
on newly discovered evidence in its Rule 59(e) motion, the party
“must produce a ‘legitimate justification for not presenting’ the
evidence during the earlier proceeding.”
Pac. Ins. Co. v. Am. Nat’l Fire Ins. Co., 148 F.3d 396, 403 (4th Cir. 1998) (citations omitted).
While plaintiff’s characterizes the ground justifying relief as “new evidence,” in reality,
he is raising a new legal argument as a basis to hold defendants liable– invasion of privacy by
misappropriation of likeness. Plaintiff could have raised this theory of liability in response to
Entertainment One’s motion for summary judgment. But, even assuming he can raise it now, he
still is not entitled to relief from the judgment.
As the court stated in its earlier order:
The claim plaintiff asserts is not clear. He does not cite any
statutory basis for relief. He does not allege or come forward with
any evidence that he owns a copyright associated with any of the
songs on the subject album or that he authored or produced any of
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those songs. He does not allege or come forward with any
evidence of any agreement with any of the defendants. He does
not suggest that defendants may have appropriated his likeness for
their own advantage. With respect to any harm, he does not allege
that he has suffered any sort of personal injury, such as
reputational damage, emotional distress, or otherwise. He merely
seems to contend that because he is identified as the
composer/writer of several songs, he is entitled to be paid.
(DE # 48 at 3.) Plaintiff’s evidence consists of computer screen printouts from Internet sources
identifying “Adam Perry” or “Adam L Perry” in conjunction with two songs on the subject
album. (Id. at 3-4.) Yet, plaintiff came forward with no evidence that any defendant had
anything to do with the posting of that information on the Internet. (Id. at 4.) That plaintiff may
now expressly claim that defendants invaded his privacy by misappropriating his likeness does
not change the court’s original analysis.
Plaintiff’s motion to set aside judgment or final verdict is DENIED.
This 23 June 2014.

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W. Earl Britt
Senior U.S. District Judge

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