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`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF GEORGIA
`ATLANTA DIVISION
`
` CIVIL ACTION NO.
` 1:10-CV-2709-JEC
`
`MARK SKEETE,
`
`v.
`
`ENTERTAINMENTSTUDIOS HOME
`ENTERTAINMENT, INC., CF
`ENTERTAINMENT, INC., ANCHOR BAY
`ENTERTAINMENT, LLC, AND
`TWENTIETH CENTURY FOX HOME
`ENTERTAINMENT, LLC, AND JOHN
`DOES 1-20,
`
`Defendant.
`
`ORDER AND OPINION
`This case is before the Court on defendant Twentieth Century
`Fox Home Entertainment, LLC’s Motion to Dismiss [10], defendant
`Twentieth Century Fox Home Entertainment, LLC’s Request for Judicial
`Notice [11], plaintiff’s Motions for Judgment by Default and Entry
`of Default Against CF Entertainment, Inc. [16], [24], [38] and [50],
`plaintiff’s Motions for Judgment by Default and Entry of Default
`Against Anchor Bay Entertainment, LLC [17], [21], [36] and [52],
`defendants EntertainmentStudios Home Entertainment, Inc., CF
`Entertainment, Inc., and Anchor Bay Entertainment LLC’s Motion to
`Dismiss [18], plaintiff’s Motion to Transfer [25], plaintiff’s
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`Motion to Strike [27], plaintiff’s Motions for Judgment by Default
`and Entry of Default Against EntertainmentStudios Home
`Entertainment, Inc. [32], [37] and [51], plaintiff’s Motion for Rule
`11 Sanctions [33], and plaintiff’s Objection to Requests for Leave
`of Absence and/or Reconsideration [49].
`The Court has reviewed the record and the arguments of the
`parties and, for the reasons set out below, concludes that defendant
`Twentieth Century Fox Home Entertainment, LLC’s Motion to Dismiss
`[10] should be GRANTED in part and DENIED in part, defendant
`Twentieth Century Fox Home Entertainment, LLC’s Request for Judicial
`Notice [11] should be GRANTED, plaintiff’s Motions for Judgment by
`Default and Entry of Default Against CF Entertainment, Inc. [16],
`[24], [38] and [50] should be DENIED, plaintiff’s Motions for
`Judgment by Default and Entry of Default Against Anchor Bay
`Entertainment, LLC [17], [21], [36] and [52] should be DENIED,
`defendants EntertainmentStudios Home Entertainment, Inc., CF
`Entertainment, Inc., and Anchor Bay Entertainment LLC’s Motion to
`Dismiss [18] should be GRANTED in part and DENIED in part,
`plaintiff’s Motion to Transfer [25] should be DENIED, plaintiff’s
`Motion to Strike [27] should be DENIED, plaintiff’s Motions for
`Judgment
`by
`Default
`and
`Entry
`of
`Default
`Against
`EntertainmentStudios Home Entertainment, Inc. [32], [37] and [51]
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`should be DENIED, plaintiff’s Motion for Rule 11 Sanctions [33]
`should be DENIED, and plaintiff’s Objection to Requests for Leave
`of Absence and/or Reconsideration [49] should be DENIED.
`BACKGROUND
`This case arises out of a copyright dispute. In 2003,
`plaintiff began filming the documentary “Crunk Kings” about local
`Atlanta rap artists Lil Jon & the Eastside Boyz. (Compl. [1] at ¶
`18.) After completing the documentary and an accompanying
`soundtrack, plaintiff began researching distribution options for his
`film. (Id. at ¶ 16.) Through his research, plaintiff became
`acquainted with defendant EntertainmentStudios Home Entertainment,
`Inc. (“ESHE”). (Id.) ESHE is in the business of distributing
`movies and TV shows via DVDs and internet programming. (Id. at ¶
`12.)
`
`In December 2005, plaintiff entered into negotiations with ESHE
`regarding a distribution deal for “Crunk Kings.” (Id. at ¶ 19.)
`Shortly thereafter, plaintiff and ESHE executed a Term Sheet
`regarding “Crunk Kings.” (Compl. [1] at ¶ 20 and Term Sheet,
`attached to Def.’s Mot. to Dismiss [10] at Ex. 1.) The Term Sheet
`purports to provide ESHE with worldwide distribution rights to
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`“Crunk Kings” for fifteen years.1 (Id.) It states further that
`“this deal memo is binding and will be . . . captured in a more
`comprehensive long form agreement.” (Id.)
`While negotiations regarding the long form agreement were
`ongoing, plaintiff sent ESHE a master copy of “Crunk Kings.”
`(Compl. [1] at ¶¶ 22-23,25.) According to plaintiff, ESHE
`represented that it needed the master copy in order to meet the
`projected release date for the DVD. (Id.) Without providing any
`detailed explanation, plaintiff summarily states that ESHE’s
`representations on this point were fraudulent. (Id. at ¶ 22-23.)
`Plaintiff alleges that his relationship with ESHE changed
`dramatically as soon as ESHE received the master copy. (Id. at ¶
`24.) In particular, plaintiff claims that after receiving the copy,
`ESHE stated that it was not interested in developing any other
`projects with plaintiff and that it viewed the “Crunk Kings” project
`simply as a “test.” (Id.)
`In spite of ESHE’s allegedly fraudulent tactics, negotiations
`on the long form agreement continued. (Compl. [1] at ¶¶ 21, 25-26.)
`In April 2006, ESHE sent plaintiff the first of many proposed Long
`Form Licence Agreements. (Proposed Long Form License Agreement,
`
`1 The Court may consider a document that is attached to a
`motion to dismiss as long as the document is central to the
`plaintiff's claim and undisputed. Day v. Taylor, 400 F.3d 1272,
`1276 (11th Cir. 2005). The Term Sheet meets both requirements.
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`attached to Def.’s Mot. to Dismiss [10] at Ex. 2.) Plaintiff claims
`that he was expecting to receive a distribution agreement as opposed
`to the licensing agreement that was sent to him. (Compl. [1] at ¶
`21.) Nevertheless, in the following months plaintiff continued to
`negotiate with ESHE as to the terms of the proposed Long Form
`Licensing Agreement. (Id. at ¶¶ 25-26.)
`In July 2006, one of plaintiff’s lawyers sent ESHE an edited
`version of the Long Form Licensing Agreement. (Revised Long Form
`Licensing Agreement, attached to Def.’s Mot. to Dismiss [10] at Ex.
`3.) ESHE responded by faxing plaintiff a revised version of the
`Long Form Licensing Agreement accompanied by a Short Form Agreement.
`(Second Revised Long Form License Agreement, attached to Def.’s Mot.
`to Dismiss [10] at Ex. 4.) ESHE subsequently sent plaintiff an
`email requesting that he either sign the agreements or face the
`possibility of legal proceedings to recoup the monies that had been
`advanced to plaintiff under the Term Sheet, as well as have the
`release of “Crunk Kings” cancelled. (July 24, 2006 Email, attached
`to Def.’s Mot. to Dismiss [10] at Ex. 5.)
`Upon his receipt of ESHE’s email, plaintiff signed and returned
`the Short Form Agreement. (Short Form Agreement, attached to Def.’s
`Mot. to Dismiss [10] at Ex. 7.) Plaintiff did not sign the Long
`Form Agreement. (Compl. [1] at ¶ 13, 21.) However, the Short Form
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`Agreement that plaintiff signed referenced the Long Form Agreement,
`stating that:
`forgoing and certain related additional rights are more
`particularly described in the License Agreement, and this
`Short Form License is subject to the terms and conditions
`of, that certain License Agreement dated as of July, 2006,
`between the Licensor and the Licensee (the “License
`Agreement”).
`(Short Form Agreement [10] at Ex. 7.) In addition, the Short Form
`Agreement provided that it would “commence on the date of the [Long
`Form] License Agreement and shall continue for the period set forth
`in the License Agreement.” (Id.)
`On the same day that plaintiff returned the signed Short Form
`Agreement, ESHE sent plaintiff an email explaining that it had
`neglected to provide a signature page for the Long Form License
`Agreement, and indicating that plaintiff needed to sign that as
`well. (July 26, 2006 email, attached to Pl.’s Resp. to Def.’s Mot.
`to Dismiss [15] at Ex. C.) ESHE then faxed the signature page to
`plaintiff. (Id.) Two days later, ESHE sent plaintiff another email
`requesting that he “initial each page [of the Long Form License
`Agreement] and . . . sign and have notarized the short form
`agreement” in order to “officially execute the agreement.” (Id. at
`Ex. D.)
`Plaintiff never returned the signature page of the Long Form
`Agreement, as requested by ESHE. According to plaintiff, ESHE’s
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`fraud had become “crystal clear” at this point. (Compl. [1] at ¶
`26.) The fraud apparently lay in the fact that ESHE was seeking a
`“film acquisition agreement and not a pressing, distribution and
`marketing agreement.” (Id.) Nevertheless, plaintiff continued
`negotiations with ESHE concerning the terms of the proposed Long
`Form License Agreement over the next two months. (Pl.’s Resp. [15]
`at Exs. F & G.) Those negotiations resulted in ESHE sending
`plaintiff at least two more versions of the Long Form Licensing
`Agreement, which plaintiff again refused to sign. (Id.)
`ESHE began distributing and selling “Crunk Kings” in August
`2006, with the assistance of defendants Anchor Bay, LLC (“Anchor
`Bay”) and Twentieth Century Fox, LLC (“Fox”).2 (Compl. [1] at ¶
`29.) Unsatisfied with the royalty statements that ESHE sent to him,
`plaintiff had his counsel make a series of inquiries in November and
`December 2006 regarding various accounting issues. (Def.’s Mot. to
`Dismiss [10] at Exs. 8-11.) These inquiries focused solely on
`ESHE’s accounting for royalties. (Id.) They did not raise any
`issues concerning the allegedly improper or unauthorized
`distribution of “Crunk Kings.” (Id.)
`
`2 The other named defendants are allegedly part of a
`“racketeering enterprise” that exploited advertising fees received
`in connection with “Crunk Kings.” (Compl. [1] at ¶¶ 15, 69-83.)
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`In March 2007, plaintiff hired an accounting firm to audit
`ESHE’s records regarding “Crunk Kings.” In response to the audit,
`ESHE produced a clean version of the Revised Long Form License
`Agreement as it existed when plaintiff signed the Short Form
`Agreement. (Pl.’s Resp. [15] at Ex. J and Def.’s Mot. to Dismiss
`[10] at Ex. 4.) This document includes the signed Short Form
`Agreement as an exhibit, but omits the signature page of the Long
`Form License Agreement. (Id.) Plaintiff claims that ESHE’s failure
`to include the signature page to the Long Form License Agreement
`amounts to fraud. (Compl. [1] at ¶¶ 31-32.)
`Nearly two years after the audit, plaintiff filed a complaint
`against ESHE and the other defendants in the Northern District of
`Georgia, and the case was assigned to Judge Vining. (Id. at 3.)
`However, plaintiff’s counsel voluntarily dismissed that action after
`defendants filed a motion to dismiss. (Id.) According to
`plaintiff, his counsel filed the motion to voluntarily dismiss over
`his “vociferous objections.” (Id.) With the assistance of new
`counsel, plaintiff sought to withdraw his motion to dismiss and to
`file an amended complaint. (Id. at Ex. A.) Judge Vining denied
`plaintiff’s request as moot, holding that the voluntary dismissal
`was self-executing.3 (Compl. [1] at Ex. A.)
`
`3 In his order, Judge Vining invited plaintiff to file a
`motion to vacate the dismissal under Rule 60(b), although he
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`Following the dismissal of plaintiff’s action, defendants filed
`a motion for attorneys’ fees based on the Copyright Act and a
`provision in the Revised Long Form License Agreement that
`accompanied the Short Form Agreement. (Id.) In denying the
`request, Judge Vining briefly discussed defendants’ argument that
`plaintiff had executed the Long Form License Agreement by signing
`the Short Form Agreement. (Id. at 7.) While he explicitly
`refrained from ruling on the issue, Judge Vining noted that it was
`“highly unusual to argue that a signed exhibit to a contract is
`sufficient to validate the unsigned contract itself, especially
`since . . . the Long Form License Agreement has a signature page.”
`(Id.) Ultimately, Judge Vining declined to award attorneys’ fees
`because plaintiff had voluntarily dismissed his claims. (Id.)
`Plaintiff subsequently renewed many of his claims against
`defendants by filing the present pro se action. All of the
`defendants have filed motions to dismiss or transfer plaintiff’s
`renewed action. (Defs.’ Mots. to Dismiss [10] and [18].)
`Defendants have also filed related motions requesting that the Court
`take judicial notice of plaintiff’s complaint in the first action.
`
`informed plaintiff that there was a circuit split concerning whether
`or not a litigant may seek relief from a voluntary dismissal under
`Rule 60. (Compl. [1] at Ex. A.) Siding with the Eighth Circuit,
`Judge Vining subsequently denied plaintiff’s motion to vacate under
`Rule 60(b). (Id.)
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`(Defs.’ Mots. for Judicial Notice [11] and [19].) In response,
`plaintiff has filed a motion to strike and several motions for
`default against various defendants. (Pl.’s Mot. to Strike [27] and
`Mots. for Default [16], [17], [21], [24], [32], [36], [37], [38],
`[50], [51], and [52].) In addition, plaintiff has filed a motion
`for Rule 11 Sanctions and a motion to transfer this case to Judge
`Vining. (Pl.’s Mot. to Transfer [25] and Mot. for Sanctions [33].)
`All of these motions are presently before the Court.4
`DISCUSSION
`
`I.
`
`Judicial Notice
`In connection with their motions to dismiss, defendants have
`asked the Court to take judicial notice of plaintiff’s complaint in
`the previous action that was dismissed by Judge Vining. (Defs.’
`Mots. for Judicial Notice [11] and [19].) A litigant’s filings in
`a previous case are appropriate for judicial notice. See Horne v.
`Potter, 392 Fed. Appx. 800, 802 (11th Cir. 2010)(noting that the
`district court properly took judicial notice of documents filed by
`the plaintiff in a prior case) and FED. R. EVID. 201(b)(judicial
`notice is proper where the facts are “not subject to reasonable
`dispute” and “capable of accurate and ready determination by resort
`
`4 Plaintiff has also filed a motion objecting to defense
`counsel’s request for a leave of absence [49]. There is no basis
`for denying counsel’s request for a leave of absence. Plaintiff’s
`motion [49] is therefore DENIED.
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`to sources whose accuracy cannot reasonably be questioned”).
`Moreover, plaintiff does not oppose defendants’ request. See LR
`7.1(B), NDGa. (“[f]ailure to file a response shall indicate that
`there is no opposition” to a motion). The Court thus GRANTS
`defendants’ motions concerning judicial notice [11] and [19].
`II. Motions to Dismiss
`A.
`Standard
`In deciding a motion to dismiss, the Court assumes that all the
`allegations in the complaint are true and construes all the facts
`in favor of the plaintiff. Scott v. Taylor, 405 F.3d 1251, 1253
`(11th Cir. 2005). That said, in order to survive a motion to
`dismiss a complaint “must contain sufficient factual matter,
`accepted as true, to ‘state a claim to relief that is plausible on
`its face.’” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)
`(quoting Bell Atlantic v. Twombly, 550 U.S. 544, 570 (2007)). A
`claim has “facial plausibility” when the plaintiff “pleads factual
`content that allows the court to draw the reasonable inference that
`the defendant is liable for the misconduct alleged.” Id.
`B.
`Counts I-III: Copyright Infringement
`In Counts I, II, and III of the complaint, plaintiff asserts
`claims for copyright infringement. (Compl. [1] at ¶¶ 34-60.)
`Defendants argue that they are not subject to liability for
`infringement because they had a license to use “Crunk Kings.”
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`(Def.’s Br. in Supp. of Mot. to Dismiss (“Def.’s Br.”) [10] at 2.)
`Specifically, defendants contend that plaintiff granted ESHE an
`express and exclusive license to use “Crunk Kings” in the Term
`Sheet, the Short Form Agreement, and the Long Form License
`Agreement. (Id.) Alternatively, defendants contend that ESHE had
`an implied and nonexclusive license to “Crunk Kings” as a result of
`plaintiff’s conduct. (Id.) Either type of license would be
`sufficient to avoid an infringement claim. See Peter Letterese And
`Assoc., Inc. v. World Inst. Of Scientology Enter., Inc., 533 F.3d
`1287, 1308 (11th Cir. 2008) (a license “is an independent
`affirmative defense to a claim of copyright infringement”).
`As indicated by defendants’ argument, a copyright license can
`either be exclusive or nonexclusive. Id. An exclusive license
`permits the licensee to use the protected material for a specific
`purpose, and promises that the same permission will not be given to
`others. See 17 U.S.C. § 204(a). To be valid, an exclusive license
`must be in writing and must be signed by the copyright owner.
`Latimer v. Roaring Toyz, Inc., 601 F.3d 1224, 1235 (11th Cir. 2010).
`Other than the writing requirement, no magic words are needed to
`give rise to an exclusive license. Id. Rather, the written
`agreement must simply demonstrate an intent by the parties to
`transfer specific rights associated with the copyright. Id.
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`In contrast to an exclusive license, a nonexclusive license to
`use a copyright may be granted orally, or may be implied from a
`party’s conduct. Id. See also Jacob Maxwell, Inc. v. Veeck, 110
`F.3d 749, 752 (11th Cir. 1997). To determine whether an implied
`license exists, the Court must focus on objective evidence that
`reveals the intent of the parties, as well as the scope of the
`license. Latimer, 601 F.3d at 1235. In granting an implied
`license, the copyright owner “waives his right to sue for copyright
`infringement while the nonexclusive license is in effect.” Wilchombe
`v. TeeVee Toons, Inc., 555 F.3d 949, 956 (11th Cir. 2009).
`Nevertheless, an “[i]mplied licenses may be limited and a defendant
`who exceeds the scope of an implied license commits copyright
`infringement.” Latimer, 601 F.3d at 1235.
`1.
`Exclusive License
`None of the documents cited by defendants conclusively
`establishes an express and exclusive license. Plaintiff concedes
`that he signed the Term Sheet, which contemplates providing ESHE
`with worldwide distribution rights to “Crunk Kings” for fifteen
`years. (Pl.’s Resp. to Defs.’ Mots. to Dismiss (“Pl.’s Resp.”) [15]
`at 5-6.) However, plaintiff claims that defendants breached the
`Term Sheet by failing to offer plaintiff a distribution agreement.
`(Id.) Moreover, the Term Sheet states that the “terms and
`conditions” of ESHE’s distribution rights will be “captured in a
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`more comprehensive long form agreement.” (Term Sheet, attached to
`Def.’s Mot. to Dismiss [10] at Ex. 1.) According to plaintiff, the
`long form agreement referenced in the Term Sheet was never finalized
`because the parties could not reach an accord as to its “terms and
`conditions.” (Compl. [1] at ¶¶ 13, 21.) In the absence of a
`finalized deal, there can be no exclusive license. See Lyrick
`Studios, Inc. v. Big Idea Prod., Inc., 420 F.3d 388, 393 (5th Cir.
`2005)(“Section 204(a) requires some language of finality.”)
`The Short Form Agreement suffers from the same deficiencies.
`Like the Term Sheet, the Short Form Agreement contemplates further
`negotiations as to the final “terms and conditions” of ESHE’s
`license. (Short Form Agreement, attached to Def.’s Mot. to Dismiss
`[10] at Ex. 7.) Moreover, the Short Form Agreement provides that
`its term period shall begin and end on the dates set forth in the
`Long Form Agreement. (Id.) Thus, even if it is otherwise
`satisfactory to convey an exclusive license, by its express terms
`the Short Form Agreement does not take effect until the referenced
`Long Form Agreement is executed. (Id.)
`Finally, it is not clear from the materials that are presently
`before the Court whether plaintiff ever executed the Long Form
`License Agreement. Plaintiff alleges that he never signed, and did
`not intend to execute, the Long Form Agreement. (Compl. [1] at ¶¶
`13, 21.) Assuming that his allegations are true, the parties did
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`not reach the finalized deal necessary to an exclusive license. See
`Lyrick Studios, 420 F.3d at 393. Even at this early stage in the
`litigation, there is some evidence in the record to support
`plaintiff’s claim that he and ESHE were still engaged in contract
`negotiations months after defendants claim that the Long Form
`License Agreement was executed. (Pl.’s Resp. [15] at 3-6.)
`2.
`Nonexclusive License
`In addition to the documents discussed above, defendants argue
`that plaintiff’s conduct created a license for ESHE to use and
`distribute “Crunk Kings.” (Def.’s Br. [10] at 7.) Specifically,
`defendants point to the fact that plaintiff’s counsel made inquiries
`concerning ESHE’s accounting for royalties connected with “Crunk
`Kings” in late 2006. (Id.) In making these inquiries, plaintiff’s
`counsel acknowledged that ESHE was using “Crunk Kings.” (Id.)
`However, plaintiff’s counsel did not suggest that ESHE’s use was in
`any way unauthorized. (Id.) According to defendants, plaintiff
`thus implicitly conceded that ESHE had the right to use and
`distribute plaintiff’s work. (Id.)
`As discussed above, a party’s conduct can give rise to a
`nonexclusive license. See Jacob Maxwell, Inc., 110 F.3d at 752 and
`Latimer, 601 F.3d at 1235. Moreover, the conduct cited by
`defendants is suggestive of an implied license. Thus, defendants
`may ultimately prevail on their implied license theory. However,
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`at this point there is no basis in the record for finding an implied
`nonexclusive license as a matter of law. As defendants have not
`conclusively established either an exclusive or nonexclusive
`license, their motions to dismiss the copyright infringement claims
`asserted in Counts I, II, and III of the complaint are DENIED.
`C.
`Counts VI and VII: State and Federal RICO Statutes
`In Counts VI and VII of the complaint, plaintiff asserts state
`and federal RICO claims.5 (Compl. [1] at ¶¶ 69-87.) These claims
`are predicated on defendants’ alleged copyright infringement. (Id.)
`In their motions to dismiss, defendants argue that plaintiff’s RICO
`claims must necessarily fail because the copyright infringement
`claims are invalid. (Def.’s Br. [10] at 13.) Having rejected
`defendants’ argument on the copyright infringement claims, the Court
`likewise DENIES defendants’ motions to dismiss Counts VI and VII of
`the complaint.
`D.
`Count IV: Fraud
`In Count IV of the complaint, plaintiff asserts a claim for
`fraud. (Compl. [1] at ¶¶ 61-68.) Defendants argue that plaintiff’s
`fraud claim should be dismissed because plaintiff has failed to
`allege fraud with the necessary particularity. (Def.’s Br. [10] at
`10-12.) The Court agrees.
`
`5 Plaintiff’s complaint does not contain a Count V. (Compl.
`[1] at 22-23.)
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`Under Federal Rule 9(b), a party alleging fraud “must state
`with particularity the circumstances constituting fraud.” FED. R.
`CIV. P. 9(b). To satisfy Rule 9(b), plaintiff must identify:
`(1) precisely what statements were made in what
`documents or oral representations or what omissions
`were made, and
`(2) the time and place of each such statement and the
`person responsible for making (or, in the case of
`omissions, not making) same, and
`(3) the content of such statements and the manner in
`which they misled the plaintiff, and
`(4) what the defendants obtained as a consequence of the
`fraud.
`Ziemba v. Cascade Int’l, Inc., 256 F.3d 1194, 1202 (11th Cir. 2001).
`Plaintiff’s complaint clearly does not meet the above standard.
`For the most part, plaintiff relies on vague allegations of a
`“pattern and practice” of misconduct in support of his fraud claim.
`(Compl. [1] at ¶ 62.) Such allegations are insufficient to state
`a claim for fraud under Rule 9(b).
`The closest plaintiff comes to specifying a fraudulent act is
`his statement that: “the signature page for the Short Form License
`Agreement executed by plaintiff was now represented to be the
`signature page for the entire Long Form License Agreement.” (Id.
`at ¶ 31.) However, that statement does not include all of the
`details required by Rule 9(b). Id. In particular, plaintiff does
`not allege how he was misled by the misstatement or any action that
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`he took in reliance upon it. See Dockens v. Runkle Consulting,
`Inc., 285 Ga. App. 896, 900 (2007)(listing justifiable reliance as
`one of the five elements of fraud).
`Based on plaintiff’s own allegations, and the contractual
`documents that are in the record, it appears that plaintiff and ESHE
`were at all relevant times engaged in arms length negotiations over
`the terms and conditions of a proposed licensing agreement for
`“Crunk Kings.” Plaintiff admits that he was represented by legal
`counsel during the entire course of those negotiations.
`Particularly given his willing and active participation in the
`negotiations, plaintiff cannot recast the end result of the process
`as fraudulent without setting forth any specific allegations
`concerning the alleged fraud. In short, plaintiff’s complaint falls
`far short of the requirements for pleading fraud under Rule 9(b).
`Accordingly, defendants’ motions to dismiss [10] and [18] are
`GRANTED as to Count IV of the complaint.
`III. Motions to Transfer
`As an alternative to dismissal, defendants argue that
`plaintiff’s action should be transferred to California pursuant to
`28 U.S.C. § 1404(a) or 28 U.S.C. § 1406(a). (Def.’s Br. [10] at 14-
`19.) In support of this argument, defendants cite a forum selection
`clause in the Long Form License Agreement. (Id.) The clause
`provides for “exclusive jurisdiction of the state and federal courts
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`Case 1:10-cv-02709-JEC Document 57 Filed 09/08/11 Page 19 of 22
`
`sitting in the State of California over any and all matters arising
`under or related to th[e License] Agreement.” (Id. at 14)(emphasis
`in original.)
`As mentioned, it is unclear at this stage in the litigation
`whether the Long Form License Agreement was ever executed.
`Plaintiff claims that he did not sign, and never intended to
`execute, the Long Form Agreement. (Compl. [1] at ¶ 13.) Defendants
`have not produced a signed copy of the Agreement. Moreover, the
`documents that are in the record tend to support plaintiff’s
`argument that the parties never reached a final accord as to the
`terms and conditions of the Long Form Agreement. Assuming
`plaintiff’s allegations are true, he is not bound by the terms of
`the Long Form Agreement, including the forum selection clause.
`Defendants’ motions to transfer [10] and [18] are therefore DENIED.
` IV. Plaintiff’s Motions for Default
`Plaintiff has filed eleven motions requesting that the Clerk
`enter a default against defendants Fox, Anchor Bay, and CF
`Entertainment. (Pl.’s Mots. for Default [16], [17], [21], [24],
`[32], [36], [37], [38], [50], [51], and [52].) The Court has not
`entered a default judgment against any of these three defendants,
`and each defendant has filed a responsive pleading to plaintiff’s
`complaint. As such, any entry of default by the Clerk under Fed.
`R. Civ. P. 55(b)(1) would be void. See Direct Mail Specialists,
`19
`
`AO 72A
`(Rev.8/82)
`
`

`
`Case 1:10-cv-02709-JEC Document 57 Filed 09/08/11 Page 20 of 22
`
`Inc. v. Eclat Computerized Techs., Inc., 840 F.2d 685, 689 (9th Cir.
`1988). To the extent that plaintiff’s motions constitute a
`request for the Court to enter a default judgment against
`defendants, the motions are DENIED. It is well settled in this
`Circuit that “defaults are seen with disfavor because of the strong
`policy of determining cases on their merits.” Florida Physician's
`Ins. Co., Inc. v. Ehlers, 8 F.3d 780, 783 (11th Cir. 1993). This
`is particularly true where, as here, plaintiff cannot point to any
`prejudice as a result of defendants’ short delay in responding to
`the complaint. Id.
`V.
`Miscellaneous Motions
`Finally, plaintiff has filed motions (1) to transfer this
`action to Judge Vining, (2) to strike defendants’ argument that the
`Long Form License Agreement was executed, and (3) for Rule 11
`sanctions as a result of defendants’ “frivolous” arguments
`concerning the Long Form Agreement. (Pl.’s Mot. to Transfer [25],
`Mot. to Strike [27], and Mot. for Sanctions [33].) All of these
`motions are based on plaintiff’s mistaken belief that Judge Vining
`held, in his order denying attorneys’ fees, that the Long Form
`Agreement was never executed. (Id.) In fact, Judge Vining
`expressly declined to rule on that issue, stating: “The Court is not
`prepared to make such a ruling.” (Compl. [1], Ex. A at 7.)
`
`20
`
`AO 72A
`(Rev.8/82)
`
`

`
`Case 1:10-cv-02709-JEC Document 57 Filed 09/08/11 Page 21 of 22
`
`Accordingly, plaintiff’s motions to transfer [25], to strike [27],
`and for sanctions [33] are DENIED.
`CONCLUSION
`For the foregoing reasons, the Court GRANTS in part and DENIES
`in part defendant Twentieth Century Fox Home Entertainment, LLC’s
`Motion to Dismiss [10], GRANTS defendant Twentieth Century Fox Home
`Entertainment, LLC’s Request for Judicial Notice [11], DENIES
`plaintiff’s Motions for Judgment by Default and Entry of Default
`Against CF Entertainment, Inc. [16], [24], [38] and [50], DENIES
`plaintiff’s Motions for Judgment by Default and Entry of Default
`Against Anchor Bay Entertainment, LLC [17], [21], [36] and [52],
`GRANTS in part and DENIES in part defendants EntertainmentStudios
`Home Entertainment, Inc., CF Entertainment, Inc., and Anchor Bay
`Entertainment LLC’s Motion to Dismiss [18], DENIES plaintiff’s
`Motion to Transfer [25], DENIES plaintiff’s Motion to Strike [27],
`DENIES plaintiff’s Motions for Judgment by Default and Entry of
`Default Against EntertainmentStudios Home Entertainment, Inc. [32],
`[37] and [51], DENIES plaintiff’s Motion for Rule 11 Sanctions [33],
`and DENIES plaintiff’s Objection to Requests for Leave of Absence
`and/or Reconsideration [49].
`
`21
`
`AO 72A
`(Rev.8/82)
`
`

`
`Case 1:10-cv-02709-JEC Document 57 Filed 09/08/11 Page 22 of 22
`
`SO ORDERED, this 8th day of September, 2011.
`
`/s/ Julie E. Carnes
`JULIE E. CARNES
`CHIEF UNITED STATES DISTRICT JUDGE
`
`22
`
`AO 72A
`(Rev.8/82)

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