Roe v. Amazon.com et al
Filing
63
ENTRY AND ORDER GRANTING PLAINTIFF'S MOTION FOR ENTRY OF FINAL JUDGMENT 61 AND ORDERING CLERK TO ENTER JUDGMENT IN FAVOR OF AMAZON.COM, INC., BARNES & NOBLE, INC., AND SMASHWORDS, INC. Signed by Judge Thomas M. Rose on 7-27-2016. (de)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
John and Jane Roe,
Plaintiffs,
v.
Case No. 3:15-cv-111
Judge Thomas M. Rose
Amazon.com, et al.,
Defendants.
ENTRY AND ORDER GRANTING PLAINTIFF’S MOTION
FOR ENTRY OF FINAL JUDGMENT, DOC. 61, AND
ORDERING CLERK TO ENTER JUDGMENT IN FAVOR
OF AMAZON.COM, INC., BARNES & NOBLE, INC., AND
SMASHWORDS, INC.
Pending before the Court is Plaintiffs John and Jane Roe’s Motion for Entry of Final
Judgment. Doc. 61. Therein, Plaintiffs request that the Court enter a final judgment as to
Amazon.com, Barnes & Noble Inc,, and Smashwords Inc., (the Corporate Defendants) pursuant to
Fed. R. Civ. P. 54(b) and Fed. R. Civ. P. 58(a).
Plaintiffs sued Jane Doe, alleging that the publication of their engagement photograph on
the cover of Jane Doe’s book, a book they describe as erotic, constituted wrongful appropriation of
their personae, invasion of privacy, and “tort liability for violation of Restatement (Second) of
Torts 652.” Liability was sought against the Corporate Defendants on the theory that they
published Jane Doe’s work. The Corporate Defendants were awarded judgment on the pleadings
because the Court determined that, as providers of on-demand publishing software and printers,
they are book sellers rather than publishers, leaving Jane Doe as the only defendant in the case.
Federal Rule Civil Procedure 54(b) states, in part, that “when more than one claim for relief
is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or
when multiple parties are involved, the court may direct the entry of a final judgment as to one or
more but fewer than all of the claims or parties only upon an express determination that there is no
just reason for delay and upon an express direction for the entry of judgment.” In allowing the
trial court to certify a claim against one party for final appeal, Rule 54(b) “tries to strike a balance
between the undesirability of piecemeal appeals . . . and the need to make the appellate process
available in multi-claim and multi-party litigation to serve the best interests of the parties.”
Jalapeno Property Management, LLC v. Dukas, 265 F.3d 506, 513 (6th Cir. 2001). In reviewing
a district court’s decision under Rule 54(b), the appellate court should give substantial deference to
the decision of the trial court as long as it articulates the reasons for its decision. Curtiss-Wright
Corp. v. General Electric Co., 446 U.S. 1, 12 (1980); Akers v. Alvey, 338 F.3d 491, 495 (6th Cir.
2003).
The party seeking certification under Rule 54(b) need not show “harsh or unusual
circumstances” to merit such a ruling; instead, “the proper standard against which a district court's
exercise of discretion in granting a Rule 54(b) certification is to be judged is the interest of sound
judicial administration.” Curtiss-Wright, 446 U.S. at 9. The Supreme Court simply describes the
“function of the district court under the Rule is to act as a ‘dispatcher.’” Curtiss-Wright, 446 U.S.
at 8 (quoting Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 435 (1956). The Sixth Circuit,
however, in Akers v. Alvey, 338 F.3d 491, 495 (6th Cir. 2003) and Corrosioneering, Inc., v.
Thyssen Env. Sys., Inc., 807 F.2d 1279, 1283 (6th Cir. 1986) delineated a “non-exhaustive list” of
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five factors constraining trial court discretion when deciding whether to certify a judgment as
final:
(1) the relationship between the adjudicated and the unadjudicated
claims;
(2) the possibility that the need for review might or might not be
mooted by future developments in the district court;
(3) the possibility that the reviewing court might be obliged to
consider the same issue a second time;
(4) the presence or absence of a claim or counterclaim which could
result in set-off against the judgment sought to be made final;
(5) miscellaneous factors such as delay, economic and solvency
considerations, shortening the time of trial, frivolity of
competing claims, expense, and the like.”
Akers v. Alvey, 338 F.3d 491, 495 (cf. Curtis-Wright, 446 U.S. at 10–11 (“because the number of
possible situations is large, we are reluctant either to fix or sanction narrow guidelines for the
district courts to follow.”)).
The court is free to weigh the factors unequally based on a case-by-case basis and need not
find that each factor favors certification in order to grant it. See Curtiss-Wright, 446 U.S. at 8 n.2.
“The task of weighing and balancing the contending” equities of a case is “peculiarly one for the
trial judge.” Curtiss–Wright, 446 U.S. at 1. It is not the appellate court's role to “reweigh the
equities.” Id. at 10, 100 S. Ct. 1460. See also AmerisourceBergen Corp. v. Dialysist W., Inc., 465
F.3d 946, 955 (9th Cir. 2006)
1. The Relationship Between the Adjudicated and the Unadjudicated Claims
The first factor weighs in favor of appeal because the issue of whether the dismissed parties
can be held liable is a separate and distinct issue from whether the remaining defendant violated
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Plaintiffs’ rights, and is one that can be separately decided by the Court of Appeals without
addressing or resolving the merits of the underlying claims. See Twinsburg Apartments, Inc. v.
Akron Metro. Hous. Auth., No. 5:04-CV-2173, 2006 WL 6584398, at *2 (N.D. Ohio Feb. 8, 2006).
Requiring a trial against the remaining defendant that could result in a finding that the Plaintiffs’
personae were wrongfully appropriated, only to then have an appeal against the dismissed
Corporate Defendants, which, if successful, could result in a trial where a different jury found
Plaintiffs’ personae were not wrongfully appropriated is a situation to be avoided.1 An appellate
resolution of the certified claims could facilitate a settlement of the remainder of the claims. See
Curtiss-Wright Corp., 446 U.S. at 8.
2. The Possibility that the Need for Review Might be Mooted
This factor cuts against Plaintiffs, because there might eventually be no need for an appeal
of this Court’s dismissal order as to the Corporate Defendants.
Specifically, if it is later
determined that Doe is not liable for publishing the book, then as a matter of law the Corporate
Defendants cannot be liable in this case. See, e.g., Corrosioneering, Inc., 807 F.2d at 1284.
3. The Possibility That the Reviewing Court Might Be Obliged to Consider the
Same Issue a Second Time
The Corporate Defendants urge that this factor weighs against granting the motion, fearing
that two appellate panels might reach contradictory decisions. Doc. 62 at 5, PageID 1016 (citing
See M. Duvall, Resolving Intra-Circuit Splits in the Federal Courts of Appeal, 3 FED. CTS. L.
REV. 17 (2009). The Corporate Defendants seem unaware of Sixth Circuit procedure.
In appeals after this court returns a case to the lower court or agency
for further proceedings…the original panel will determine whether
1 Both parties concede that two trials are a possibility without Rule 54 certification. See Doc. 62 at 3, PageID 1014.
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to hear the appeal or whether it should be assigned to a panel at
random.
6 Cir. I.O.P. 34(b)(2) Subsequent Appeals Returned to Original Panel. There is no chance of a
subsequent panel reaching a contrary opinion.
Moreover, the court perceives little chance that the reviewing court would face two appeals
raising the same issue a second time.
The first appeal would likely concern liability for
republishing. Any second appeal would concern liability for initial publication. Moreover,
given the limited financial resources of the remaining defendants, appellate resolution of the
certified claims would facilitate a settlement of the remainder of the claims. See Curtiss-Wright
Corp. v. Gen. Elec. Co., 446 U.S. 1, 8 n.2 (1980)). This factor therefore weighs in favor of Rule
54(b) certification.
4.
The Presence or Absence of a Claim or Counterclaim Which Could Result in
Set-off Against the Judgment Sought to Be Made Final
The instant case is unlike Curtiss-Wright, where a defendant sought certification while a
large, liquidated $19,000,000 counterclaim pended at a time when the difference between the
prejudgment and market interest rates would cause the plaintiff to suffer a severe daily financial
loss unless certification was granted. See Wright & Miller, 10 Fed. Prac. & Proc. Civ. § 2659 (3d
ed.). Here, Plaintiff seeks certification and there is no pending counterclaim. This factor thus
weighs in favor of granting certification.
5. Miscellaneous Factors Such as Delay, Economic and Solvency Considerations,
Shortening the Time of Trial, Frivolity of Competing Claims and Expense
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Since at this point it will require two trials for Plaintiffs to obtain a judgment they can
readily collect, shortening the time of trial by half means that this factor weighs in favor of
certifying the appeal.
Mindful of the Sixth Circuit's admonition that for certification under Rule 54(b) to be
proper, the case must qualify as an “infrequent harsh case,” Rudd Construction Equip. Co., Inc. v.
Home Ins. Co., 711 F.2d 54, 56 (6th Cir. 1983),2 this Court believes that an analysis of the
Corrosioneering factors mitigates in favor of certification of this Court's ruling on the Corporate
Defendants’ Motion to Dismiss. The relationship between the adjudicated and unadjudicated
claims is such that they would be most efficiently dealt with in a single proceeding. This case is
dispatched. Plaintiffs John and Jane Roe’s Motion for Entry of Final Judgment, Doc. 61, is
therefore GRANTED. The Clerk is ORDERED to enter judgment in favor of Amazon.com,
Inc., Barnes & Noble, Inc., and Smashwords, Inc.
DONE and ORDERED in Dayton, Ohio, this Wednesday, July 27, 2016.
s/Thomas M. Rose
________________________________
THOMAS M. ROSE
UNITED STATES DISTRICT JUDGE
2 “[T]he phrase ‘infrequent harsh case’ in isolation is neither workable nor entirely reliable as a benchmark for
appellate review. There is no indication it was ever intended by the drafters to function as such.” Curtiss-Wright Corp.,
446 U.S. at 10.
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