Richardson v. Russell et al

Filing 56

MEMORNADUM AND ORDER: The defendant's Objections 52 and the plaintiff's Objections 54 are both OVERRULED. The court ACCEPTS AND ADOPTS the Report and Recommendation 47 . The Memorandum and Order at Docket No. 55 is VACATED. Signed by District Judge Aleta A. Trauger on 5/20/16. (xc:Pro se party by regular and certified mail.)(DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt) Modified on 5/20/2016 (dt).

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
JAMES A. RICHARDSON, JR.

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Plaintiff,
v.

ED RUSSELL, et al.,
Defendants.

Civil No. 3:15-CV-869
Judge Aleta A. Trauger

MEMORANDUM AND ORDER
This Memorandum and Order addresses several matters:
I.

Correction
On May 19, 2016, the court issued a Memorandum and Order. (Docket No. 55.) That

Order was entered in error and is hereby vacated.
II.

First Objections to Report and Recommendation
On April 20, 2016, the Magistrate Judge issued a Report and Recommendation (“R&R”)

(Docket No. 47), which recommends that, inter alia, the Motion to Dismiss (Docket No. 31) filed
by the plaintiff be granted in part and denied in part as to defendant Russell’s counterclaims.
Russell filed a document entitled “Plaintiff Answer to Court’s Recommendation” (Docket No.
52) within the period allowed for the filing of Objections.
Russell’s filing contains no substantive response relevant to the R&R. Rather, it merely is
a short restatement of Russell’s claims. Indeed, it does not even mention the legal discussion
contained in the R&R. Even if viewed as “Objections,” this commentary is not specific to the
R&R and is, therefore, overruled. Even if the court were to view Russell’s pro se submission as

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a general objection to the entire R&R, “a general objection to the entirety of the magistrate
judge’s report has the same effect as would a failure to object.” Howard v. Sec’y of Health &
Human Servs., 932 F.2d 505, 509 (6th Cir. 1991). This Objection will, therefore, be overruled.
II.

Second Objection to Report and Recommendation
The R&R specifically recommends that the Motion to Dismiss be denied as to defendant

Russell’s counterclaim for malicious prosecution. (Docket No. 47.) Richardson has filed an
Objection to the R&R concerning this conclusion. (Docket No. 54).
When a magistrate judge issues a report and recommendation regarding a dispositive
pretrial matter, the district court must review de novo any portion of the report and
recommendation to which a specific objection is made. Fed. R. Civ. P. 72(b); 28 U.S.C. §
636(b)(1)(C); United States v. Curtis, 237 F.3d 598, 603 (6th Cir. 2001); Massey v. City of
Ferndale, 7 F.3d 506, 510 (6th Cir. 1993). Objections must be specific; an objection to the
report in general is not sufficient and will result in waiver of further review. See Miller v.
Currie, 50 F.3d 373, 380 (6th Cir. 1995).
This case arises from a contentious dispute regarding the authorship and ownership of a
song titled “Butterfly Feeling.” In this suit, Richardson maintains that he wrote the song in 2009
and that Russell, among others, acted in concert to steal the song. Richardson brought a lawsuit
for copyright infringement against Russell and others in the District Court of Massachusetts in
January 2014. The case was dismissed in July 2014 for lack of personal jurisdiction. Russell
next filed a copyright infringement case against Richardson in this Court. On August 10, 2015,
Richardson filed a complaint in which he alleged claims of libel, malicious prosecution,
intentional infliction of emotional distress, and civil conspiracy against Russell and others.

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(Docket No. 1.) On October 14, 2015, Russell, proceeding pro se, filed a counter complaint in
which he asserted claims of libel, malicious prosecution, intentional infliction of emotional
distress, and civil conspiracy against Richardson. (Docket No. 19.) On November 30, 2015,
Richardson moved to dismiss Russell’s counterclaims for failure to state a claim and for lack of
subject matter jurisdiction. (Docket No. 31.) Russell responded to this motion on December 11,
2015, though he did not address the merits of Richardson’s motion to dismiss. (Docket No. 39.)
In Richardson’s Motion to Dismiss, he exclusively argued that Russell’s malicious
prosecution claim is barred by the statute of limitations or, alternatively, a lack of constitutional
standing. (Docket No. 31-1, pp. 5-7.) The Magistrate Judge examined these issues and
concluded that neither formed a basis for dismissal of the claim. (See Docket No. 47 at pp. 9-15.)
The court agrees with those analyses.
The Magistrate Judge also observed in a footnote:
as Richardson is represented by counsel, the undersigned is wary of
construing his motion to dismiss for lack of standing and for being
time-barred as a Rule 12(b)(6) motion to dismiss for failure to state a
claim. If the District Judge is inclined to interpret Richardson’s motion
as also seeking dismissal under Rule 12(b)(6), the Magistrate Judge
would recommend that the counterclaim for malicious prosecution be
dismissed on account of the prior suit not terminating in Russell’s
favor.
(Docket No. 47, p. 15 n. 6.) The Objections seize upon this opening and claim that the
Magistrate Judge erred by not ruling under Rule 12(b)(6) in Richardson’s favor. The court,
however, has reviewed the Motion to Dismiss and does not find that Richardson requested
dismissal of the malicious prosecution claim under Rule 12(b)(6). His entire legal discussion is
focused on statute of limitations and standing. The fact that he may have referenced the Rule
elsewhere in the motion is of no avail. The Magistrate Judge properly limited his ruling to

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procedural grounds and the court will not disturb that conclusion upon de novo review.
Accordingly, this Objection will be overruled and Russell’s malicious prosecution claim will
proceed.
For these reasons,
1.

The defendant’s Objections (Docket No. 52) and the plaintiff’s Objections
(Docket No. 54) are both OVERRULED.

2.

The court ACCEPTS AND ADOPTS the Report and Recommendation (Docket
No. 47).

3.

The Memorandum and Order at Docket No. 55 is VACATED.

IT IS SO ORDERED.
Enter this 19th day of May 2016.

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ALETA A. TRAUGER
United States District Judge

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