Perry v. Entertainment One (Koch Records), et al
Filing
66
ORDER denying 64 Motion for Relief of Order or Final Judgment. Signed by Senior Judge W. Earl Britt on 1/28/2015. Copy mailed to plaintiff via US Mail at 600 Swamp Road, Hertford, NC 27944. (Marsh, K)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NORTH CAROLINA
NORTHERN DIVISION
NO. 2:13-CV-00022-BR
ADAM L. PERRY,
Plaintiff,
v.
ORDER
LENCH MOB RECORDS, et al.,
Defendants,
This matter is before the court on plaintiff’s “motion for relief of order or final
judgment.” (DE # 64.) Defendant Entertainment One U.S. LP (“Entertainment One”) filed a
response, (DE # 65), and this matter is now ripe for disposition.
I. 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. 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.) On 23 June 2014, the court denied
plaintiff’s motion to set aside the judgment. (DE # 58.) The Fourth Circuit Court of Appeals
subsequently affirmed the court’s summary judgment order in favor of defendants. (DE # 59).
II. DISCUSSION
Pursuant to Rule 60(b) of the Federal Rules of Civil Procedure, plaintiff moves for relief
from the judgment. (DE # 64, at 1). This rule allows the court to relieve a party from a final
judgment in the following limited circumstances:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence, could not have been
discovered in time to move for a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or
misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released or discharged; it is based on an earlier
judgment that has been reversed or vacated; or applying it prospectively is no longer
equitable; or
(6) any other reason that justifies relief.
Fed. R. Civ. P. 60(b). Before showing the existence of one of the above grounds, “the moving
party must make a threshold showing that (1) its motion was timely made; (2) it had a
meritorious [claim]; (3) no unfair prejudice to the opposing party would result; and (4)
exceptional circumstances warranted relief from the judgment." Robinson v. Wix Filtration
Corp. LLC, 599 F.3d 403, 412 n.12 (4th Cir. 2010).
Plaintiff has failed to make the required threshold showing. In support of his motion,
plaintiff proffers the same arguments which the parties have fully litigated in this court and in the
Fourth Circuit Court of Appeals. His contentions center on 1) the misappropriation of his name
and likeness; 2) invasion of privacy; 3) the spoliation of evidence; and 4) the default of
defendants. First, plaintiff has not shown that he has a meritorious claim. This court and the
Court of Appeals have repeatedly rejected these claims, and plaintiff has failed to offer any
persuasive argument as to why the courts’ decisions were erroneous. Although plaintiff now
claims that defendants’ actions amount to a violation of plaintiff’s due process rights, (DE # 64,
at 4), plaintiff cannot assert a new claim or put forward a new legal theory as a basis for his Rule
60(b) motion, see Mosby v. Sykes, No. 5:12-CT-3246-FL, 2014 WL 6851637, at *2 (E.D.N.C.
December 3, 2014). Further, the court finds that granting plaintiff’s motion would unfairly
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prejudice defendants. This case has been fully litigated through the appeals process, and the
court will not subject defendants to relitigating the same claims. Lastly, plaintiff has not shown
the exceptional circumstances required to justify relief from the judgment.
Even assuming plaintiff was able to make the threshold showing, he has failed to prove
the existence of any ground for relief under Rule 60(b)(1)-(6). Although not clear, it appears
plaintiff argues that Rule 60(b)(1) justifies relief based on mistake. (DE # 64, at 1 (plaintiff
“report[ing] exceptional importance [sic] mistake of the ruling from the court . . . .).) Plaintiff
has not proved that any mistake of the court entitles him to relief. Neither has plaintiff shown
any misconduct of defendants which warrants relief under Rule 60(b)(3). Finally, the court sees
no other reason that would justify relief under Rule 60(b)(6). Plaintiff has failed to prove any
ground that would justify the exceptional relief under Rule 60(b).
III. CONCLUSION
Based on the foregoing, plaintiff’s motion, (DE # 64), is DENIED.
This 28 January 2015.
__________________________________
W. Earl Britt
Senior U.S. District Judge
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