Stewart v. M & M Headgear, Inc. et al
Filing
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Memorandum Opinion and Order granting defendant Moon's Motion for summary judgment oln Plaintiff's breach of contract claim (Related Doc # 29 ). Judge Donald C. Nugent 12/7/15(C,KA)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
SHANNA STEWART,
Plaintiff,
v.
KIHYOUK MOON, et al.,
Defendants
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CASE NO. 5:14 CV 857
JUDGE DONALD C. NUGENT
MEMORANDUM OPINION
AND ORDER
This matter comes before the Court upon the Motion of Defendant Kihyouk Moon for
partial summary judgment on Plaintiff’s claim of breach of contract against Mr. Moon. (ECF
#29). For the reasons that follow, Defendant Moon’s Motion for Summary Judgment on
Plaintiff’s breach of contract claim is granted.
FACTUAL BACKGROUND
Plaintiff Shanna Stewart filed this action on April 21, 2014 against Defendants Kihyouk
Moon a/k/a Kevin Moon, his company M & M Headgear and nine other businesses alleging
claims of violation of Plaintiff’s right of publicity (Count One) and invasion of privacy (Count
Two) arising from the unauthorized use of Plaintiff’s photograph on product packaging for
ethnic hair products. Plaintiff later filed a second amended complaint (“SAC”) which added a
breach of contract claim against Defendant Moon. (Count Three).1
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Defendant M &M Headgear was dismissed for lack of personal jurisdiction. Plaintiff
filed notices of dismissal with respect to Defendants Elliebeauty.com, Ebonichair.com,
Bestthairforyou.com, and BeautyVirus. Default (but no default judgment) has been
entered as to Defendant Touch of Beauty. None of the other business defendants,
TexasBeautySupply.com, Hairsisters.com or eClassyFashion.com have entered an
appearance and Plaintiff has not appeared to take any action with respect to these
defendants. Plaintiff has also named Doe Defendants 1-100 but has failed to update the
Court as to the identity of these defendants.
In her SAC, Plaintiff alleges that in 2002 she agreed, through her modeling agent, to pose
for a photo shoot to model ethnic hair accessories for Defendant Moon, purportedly for a
magazine article. SAC, ¶22. Plaintiff alleges that she was presented with a contract, presumably
by her modeling agent, and signed a release granting Moon the right to use her photographs but
that the language of the release expressly prohibited using the photographs for product
packaging. SAC, ¶¶ 22, 25. Plaintiff notes that she believes that Moon paid her modeling agency
$528 for the shoot of which she received approximately $440. SAC, ¶26. A copy of the alleged
contract is attached as Exhibit A to the SAC. Unfortunately, the copy of the contract attached to
Plaintiff’s filing is virtually illegible, particularly the very small printing under Model’s Release
as well as the writing on the right side of the document which contains little boxes that may or
may not be checked. Finally, the document appears to be signed but both signatures are
unreadable. The Court raised this “illegibility” issue with Plaintiff’s counsel during two different
status conferences but Plaintiff never submitted a legible copy of the contract to the Court.
Defendant Moon has moved for summary judgment on Plaintiff’s contract claim. That
motion is now fully briefed. Defendant Moon also moved to strike Plaintiff’s “Exhibit A” used
in opposition to Defendant’s Motion for Summary Judgment (ECF #40) on the ground that it is
unauthenticated and inadmissible. The Court granted Defendant’s Motion to Strike after
Plaintiff failed to file any opposition to the motion.
STANDARD OF REVIEW
Summary judgment is appropriate when the court is satisfied “that there is no genuine
issue as to any material fact and that the moving party is entitled to a judgment as a matter of
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law.” FED. R. CIV. P. 56(c). The burden of showing the absence of any such “genuine issue”
rests with the moving party:
[A] party seeking summary judgment always bears the initial responsibility of
informing the district court of the basis for its motion, and identifying those portions
of ‘the pleadings, depositions, answers to interrogatories, and admissions on file,
together with affidavits, if any,’ which it believes demonstrates the absence of a
genuine issue of material fact.
Celotex v. Catrett, 477 U.S. 317, 323 (1986) (citing FED. R. CIV. P. 56©). A fact is “material”
only if its resolution will affect the outcome of the lawsuit. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). Determination of whether a factual issue is “genuine” requires
consideration of the applicable evidentiary standards. The court will view the summary
judgment motion in the light most favorable to the party opposing the motion. Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
Summary judgment should be granted if a party who bears the burden of proof at trial
does not establish an essential element of their case. Tolton v. American Biodyne, Inc., 48 F.3d
937, 941 (6th Cir. 1995) (citing Celotex, 477 U.S. at 322). Accordingly, “[t]he mere existence of
a scintilla of evidence in support of the plaintiff’s position will be insufficient; there must be
evidence on which the jury could reasonably find for the plaintiff.” Copeland v. Machulis, 57
F.3d 476, 479 (6th Cir. 1995) (citing Anderson, 477 U.S. at 252). Moreover, if the evidence
presented is “merely colorable” and not “significantly probative,” the court may decide the legal
issue and grant summary judgment. Anderson, 477 U.S. at 249-50 (citations omitted). In most
civil cases involving summary judgment, the court must decide “whether reasonable jurors could
find by a preponderance of the evidence that the [non-moving party] is entitled to a verdict.” Id.
at 252. However, if the non-moving party faces a heightened burden of proof, such as clear and
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convincing evidence, it must show that it can produce evidence which, if believed, will meet the
higher standard. Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6th Cir. 1989).
Once the moving party has satisfied its burden of proof, the burden then shifts to the
nonmover. The nonmoving party may not simply rely on its pleadings, but must “produce
evidence that results in a conflict of material fact to be solved by a jury.” Cox v. Kentucky Dep’t
of Transp., 53 F.3d 146, 149 (6th Cir. 1995). FED. R. CIV. P. 56(e) states:
When a motion for summary judgment is made and supported as provided in this
rule, an adverse party may not rest upon the mere allegations or denials of the
adverse party’s pleading, but the adverse party’s response, by affidavits or as
otherwise provided in this rule, must set forth specific facts showing that there is
a genuine issue for trial.
The Federal Rules identify the penalty for the lack of such a response by the nonmoving party as
an automatic grant of summary judgment, where otherwise appropriate. Id.
Though parties must produce evidence in support of and in opposition to a motion for
summary judgment, not all types of evidence are permissible. The Sixth Circuit has concurred
with the Ninth Circuit that “‘it is well settled that only admissible evidence may be considered
by the trial court in ruling on a motion for summary judgment.’” Wiley v. United States, 20 F.3d
222, 225-26 (6th Cir. 1994) (quoting Beyene v. Coleman Sec. Servs., Inc., 854 F.2d 1179, 1181
(9th Cir. 1988)). Fed. R. Civ. P. 56(e) also has certain, more specific requirements:
[Rule 56(e)] requires that affidavits used for summary judgment purposes be
made on the basis of personal knowledge, set forth admissible evidence, and show
that the affiant is competent to testify. Rule 56(e) further requires the party to
attach sworn or certified copies to all documents referred to in the affidavit.
Furthermore, hearsay evidence cannot be considered on a motion for summary
judgment.
Wiley, 20 F.3d at 225-26 (citations omitted). However, evidence not meeting this standard may
be considered by the district court unless the opposing party affirmatively raises the issue of the
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defect.
If a party fails to object before the district court to the affidavits or evidentiary
materials submitted by the other party in support of its position on summary
judgment, any objections to the district court’s consideration of such materials are
deemed to have been waived, and [the Sixth Circuit] will review such objections
only to avoid a gross miscarriage of justice.
Id. at 226 (citations omitted).
As a general matter, the district judge considering a motion for summary judgment is to
examine “[o]nly disputes over facts that might affect the outcome of the suit under governing
law.” Anderson, 477 U.S. at 248. The court will not consider non-material facts, nor will it
weigh material evidence to determine the truth of the matter. Id. at 249. The judge’s sole
function is to determine whether there is a genuine factual issue for trial; this does not exist
unless “there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for
that party.” Id.
In sum, proper summary judgment analysis entails “the threshold inquiry of determining
whether there is the need for a trial--whether, in other words, there are any genuine factual issues
that properly can be resolved only by a finder of fact because they may reasonably be resolved in
favor of either party.” Anderson, 477 U.S. at 250.
DISCUSSION
Defendant Moon moves for summary judgment on Plaintiff’s contract claim on several
grounds, foremost among them is his argument that the language of the contract does not
contractually prohibit Moon from using the model’s image on product packaging and Plaintiff
has offered no evidence that he breached the contract. Plaintiff failed to address Mr. Moon’s
argument regarding the contract language and did not file any admissible evidence such as
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deposition testimony or affidavit in support of her claim or to rebut the arguments and evidence
submitted by Defendant. Moreover, she has never provided the Court with an authenticated,
legible copy of the contract upon which her claim is based. As such the Court has no basis upon
which to evaluate Plaintiff’s contract claim. A court cannot enforce a contract unless it can
determine what it is. See Rulli v. Fan Co., 79 Ohio St.3d 374, 376, 683 N.E.2d 337 (1997)
quoting, 1 Corbin on Contracts (Rev.Ed.1993) 525, Section 4.1. As Plaintiff has failed to meet
her burden under Fed. R. Civ. P. 56(e), Defendant is entitled to judgment on Plaintiff’s breach of
contract claim.
Accordingly, Defendant Moon’s Motion for Summary Judgment on Plaintiff’s breachof
contract claim (ECF # 29) is granted.
IT IS SO ORDERED.
__/s/Donald C. Nugent____________
Donald C. Nugent
UNITED STATES DISTRICT JUDGE
DATED:_December 7, 2015____
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