Case 1:09-cv-01825-CCB Document 55 Filed 12/28/11 Page 1 of 10
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MARYLAND
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`Civil No. CCB-09-1825
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`MEMORANDUM
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`ESTATE OF KHIA EDGERTON
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`UPI HOLDINGS, INC. D/B/A
`UNRULY RECORDS,
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`UNRULY PRODUCTIONS, AND
`U MANAGEMENT, et al.
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`This action arises from a business relationship between the late Khia Edgerton and a
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`record label, UPI Holdings, Inc. d/b/a Unruly Productions, Unruly Records, and U Management
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`(“Unruly Productions”). After Ms. Edgerton’s death, the Estate of Khia Edgerton (“plaintiff” or
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`“the Estate”) brought suit against Unruly Productions and the individuals Shawn Caesar, Paul W.
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`Gardner II, and Scott Rice, alleging federal and state law violations stemming from defendants’
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`production and distribution of Ms. Edgerton’s musical work. On July 1, 2010, this court ruled on
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`motions to dismiss by Caesar, Gardner, and Rice, allowing some but not all of the claims against
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`them to proceed. The court granted a default judgment against Unruly Productions on multiple
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`claims, including copyright infringement. Now pending before the court are motions for
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`summary judgment filed by Caesar, Gardner, and Rice. Caesar has also filed a separate
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`document with the court, styled as a motion for summary judgment on any damage award, on
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`behalf of Unruly Productions. No hearing is necessary. See Local Rule 105.6. For the
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`following reasons, the motions filed by defendants Caesar, Gardner, and Rice will be granted.
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`1
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`Case 1:09-cv-01825-CCB Document 55 Filed 12/28/11 Page 2 of 10
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`The motion filed on behalf of Unruly Productions will be denied, but summary judgment will be
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`granted to Unruly Productions with regard to damages and costs, and the case will be closed.
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`BACKGROUND
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`This court's opinion on defendants’ motions to dismiss recounts the Estate’s allegations.
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`(ECF No. 30) To provide background for the summary judgment motions now before the court,
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`those facts and allegations are repeated here in part.
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`Khia Edgerton was a popular Baltimore disc jockey (“DJ”) who performed under the
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`names “K-Swift” and “Club Queen K-Swift.” Ms. Edgerton began performing in clubs under
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`these names from the age of 15 and gained a growing national fan base over the course of her
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`life. In 2005, through Mr. Rice and Mr. Caesar’s record label, Unruly Productions, Ms. Edgerton
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`started selling compact discs (“CDs”) containing mixes of songs she had selected and arranged.
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`Between 2005 and 2008, Ms. Edgerton released over 14 CDs. On July 21, 2008, Ms. Edgerton
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`passed away unexpectedly after a diving accident.
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`The following day, Unruly Productions signed a national distribution deal with Koch
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`Entertainment Distribution, enabling its products to be sold to major retailers throughout the
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`country. Mr. Caesar announced shortly afterward that the first CD released pursuant to this
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`distribution deal would be a compilation of Ms. Edgerton’s mixes, entitled “The Club Queen: K-
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`Swift’s Greatest Hits.” On July 28 and 29, Mr. Caesar and Mr. Gardner filed federal trademark
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`applications with the United States Patent and Trademark Office for “K-Swift” and “Club Queen
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`K-Swift.” Unruly Productions released “The Club Queen: K-Swift’s Greatest Hits” in December
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`2008, and, according to plaintiffs, began selling the CDs throughout the country.
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`2
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`Case 1:09-cv-01825-CCB Document 55 Filed 12/28/11 Page 3 of 10
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`When Ms. Edgerton’s Estate contacted Mr. Caesar shortly after Ms. Edgerton’s death to
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`inquire about her business arrangements with Unruly Productions, Mr. Caesar and Mr. Rice
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`informed the Estate that Ms. Edgerton had signed two agreements with Unruly Productions: a
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`“Management Agreement” and an “Exclusive Mix CD and Compilation Agreement” (the “CD
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`Agreement”). Under the Management Agreement, Unruly Productions was to receive fifteen
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`percent of Ms. Edgerton’s gross weekly earnings. The contract also obligated Unruly
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`Productions to keep accurate books and records of all Ms. Edgerton’s transactions. The term of
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`the Management Agreement was for one year with a four-year annual irrevocable option to be
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`exercised at Unruly Productions’ discretion. Pursuant to the CD Agreement, Ms. Edgerton
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`granted copyright ownership to her CDs, the right to sell the CDs to certain retailers, and the
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`right to use her stage names, logos, and likeness in connection with the CDs to Unruly
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`Productions.
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`On July 14, 2009, the Estate brought suit in this court against the defendants. The
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`complaint, as amended, alleged that defendants forged the Management Agreement and the CD
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`Agreement. (Am. Compl. ¶ 36, ECF No. 6.) The Estate claimed it had no knowledge of the
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`Management Agreement or the CD Agreement prior to receiving them from the defendants
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`subsequent to Ms. Edgerton’s death, and it claimed that the documents were fraudulent because
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`the signature pages on the two agreements appear to be identical. (Id. at ¶¶ 28–29.) Even if the
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`documents were not forged, the Estate alleged, the defendants failed to abide by the terms of the
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`agreements because they had not provided the Estate with an accounting of CD sales or with
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`payment of any resulting royalties. (Id. at ¶34.) Based on these factual allegations, the Estate
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`brought an action in this court accusing the defendants of fraud (Count I), trademark
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`3
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`Case 1:09-cv-01825-CCB Document 55 Filed 12/28/11 Page 4 of 10
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`infringement (Count II), violation of the Lanham Act (Count III), copyright infringement (Count
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`IV), unfair competition and misappropriation (Count V), tortious interference with business
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`relations (Count VI), breach of fiduciary duty (Count VII), and breach of contract with respect to
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`the Management Agreement (Count VIII) and the CD Agreement (Count IX).
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`Individual defendants Caesar, Gardner and Rice responded to the amended complaint by
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`jointly filing an answer and then later filing individual motions to dismiss. (ECF Nos. 8, 18, 19,
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`21.) Defendants alleged both lack of subject matter jurisdiction, under Fed. R. Civ. P. 12(b)(1),
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`and failure to state a claim upon which relief can be granted, under Fed. R. Civ. P. 12(b)(6).
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`Unruly Productions failed to respond to the complaint at all, and the plaintiff moved for entry of
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`a default judgment against the company. On July 1, 2010, after considering the various motions,
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`this court dismissed the claims for trademark infringement (Count II) and violation of the
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`Lanham Act (Count III), but allowed all the other claims against Caesar, Gardner and Rice to
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`proceed. (ECF No. 30.) The court also entered a default judgment in favor of the Estate against
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`Unruly Productions on all of the same counts that survived against the individual defendants.
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`(ECF No. 32.) That order granted judgment on each of the surviving counts, “plus damages,
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`costs and disbursements.” (Id.)
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`Subsequent to those July 2010 rulings, the court issued a scheduling order. That order
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`was eventually amended to allow the parties until January 12, 2011, to complete discovery.
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`(ECF No. 38.) The plaintiff did not serve interrogatories and requests for production of
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`documents on the defendants until January 11, 2011. (ECF No. 41.) Defendants declined to
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`respond because no time was available before the discovery deadline to do so. (ECF No. 45.)
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`For the same reason, this court denied the plaintiff’s motion to compel discovery. (ECF No. 49.)
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`Case 1:09-cv-01825-CCB Document 55 Filed 12/28/11 Page 5 of 10
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`On September 9, 2011, the three individual defendants filed pro se motions for summary
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`judgment, arguing the Estate had “failed to produce any evidence” to support its allegations.
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`(ECF Nos. 50–52.) Defendant Caesar also signed a separate fourth motion for summary
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`judgment on behalf of Unruly Productions, arguing that no evidence of damages had been
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`provided and thus that the court should allow no further action against the company. (ECF No.
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`53.) The Estate filed an opposition brief in response to Unruly Productions’ motion, but did not
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`file anything in response to the individual defendants’ motions. (ECF No. 54.) Unruly
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`Productions has not filed a reply.
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`STANDARD OF REVIEW
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`Federal Rule of Civil Procedure 56(c) provides that summary judgment “should be
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`rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show
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`that there is no genuine issue as to any material fact and that the movant is entitled to judgment
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`as a matter of law.” Fed. R. Civ. P. 56(c)(2). The Supreme Court has clarified that this does not
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`mean any factual dispute will defeat the motion. “By its very terms, this standard provides that
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`the mere existence of some alleged factual dispute between the parties will not defeat an
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`otherwise properly supported motion for summary judgment; the requirement is that there be no
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`genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986)
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`(emphasis in original). Whether a fact is material depends upon the substantive law. See id.
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`“A party opposing a properly supported motion for summary judgment ‘may not rest
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`upon the mere allegations or denials of [his] pleadings,’ but rather must ‘set forth specific facts
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`showing that there is a genuine issue for trial.’” Bouchat v. Baltimore Ravens Football Club,
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`Case 1:09-cv-01825-CCB Document 55 Filed 12/28/11 Page 6 of 10
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`Inc., 346 F.3d 514, 522 (4th Cir. 2003) (alteration in original) (quoting Fed. R. Civ. P. 56(e)).
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`The court must “view the facts and draw reasonable inferences ‘in the light most favorable to the
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`party opposing the [summary judgment] motion,’” Scott v. Harris, 550 U.S. 372, 378 (2007)
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`(alteration in original) (quoting United States v. Diebold, 369 U.S. 654, 655 (1962)), but the
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`court also must abide by the “affirmative obligation of the trial judge to prevent factually
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`unsupported claims and defenses from proceeding to trial.” Drewitt v. Pratt, 999 F.2d 774, 778–
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`79 (4th Cir. 1993) (internal quotation marks omitted).
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`The court will grant summary judgment for defendants Caesar, Gardner and Rice, as it
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`ANALYSIS
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`appears the plaintiff has abandoned its claims against them. While the plaintiff responded with
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`an opposition brief to defendant Unruly Productions’ motion for summary judgment, the plaintiff
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`did not respond at all to the motions filed by defendants Caesar, Gardner and Rice. A plaintiff’s
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`failure to respond to a summary judgment motion may constitute waiver or abandonment of a
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`claim. See, e.g., Mentch v. Eastern Sav. Bank, FSB, 949 F. Supp. 1236, 1246–47 (D. Md. 1997).
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`Plaintiff’s abandonment of these claims is further evidenced by the fact that over six months
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`passed after this court’s original July 9, 2010, scheduling order without the plaintiff having
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`propounded any discovery.
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`Unruly Productions’ motion for summary judgment, however, was improperly filed. On
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`July 1, 2010, this court granted default judgment against Unruly Productions on the Estate’s
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`claims of fraud and counterfeiting, copyright infringement, unfair competition and
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`misappropriation, tortious interference with business relations and breach of fiduciary duty.
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`6
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`Case 1:09-cv-01825-CCB Document 55 Filed 12/28/11 Page 7 of 10
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`(ECF No. 32.) Unruly Productions did not move to set aside this default judgment. Now, over a
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`year later, defendant Shawn Caesar has signed and filed this motion for summary judgment on
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`behalf of Unruly Productions. Caesar is not an attorney, however, and no attorney has signed
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`this motion as counsel for Unruly Productions. Local Rule 101.1 (a) of this district states that
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`“all parties other than individuals must be represented by counsel.”1 Thus, without
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`representation by an attorney, Unruly Productions may not file a motion for summary judgment
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`before this court.
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`While Unruly Productions’ motion for summary judgment was improperly filed, the
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`circumstances nonetheless dictate that this court grant summary judgment sua sponte to Unruly
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`Productions on the question of monetary damages and attorney fees and costs. Despite six
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`months of time for discovery, the Estate failed to timely serve defendants with interrogatories,
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`notice of depositions or requests for production of documents. In February 2011, the plaintiff
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`reported to the court that it had subpoenaed retailers and received responses. (February 25, 2011,
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`Status Report, ECF No. 42.) But when the defendant’s summary judgment motion presented the
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`plaintiff with an opportunity to respond by including information provided by these retailers, the
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`plaintiff failed to do so. In responding to Unruly Productions, the plaintiff referred only to the
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`exhibits attached to the amended complaint. Where, as here, a claim’s proponent has been given
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`notice and a reasonable opportunity to be heard, a district court may properly grant summary
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`judgment sua sponte. See U.S. Development Corp. v. Peoples Federal Sav. & Loan Ass'n, 873
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`F.2d 731, 735–36 (4th Cir. 1989).
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`Summary judgment is also warranted on the Estate’s request for attorney fees and costs.
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`Maryland courts generally follow the “American rule,” in which each party is responsible for its
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`1 Local rules “have the force of law.” Hollingsworth v. Perry, --- U.S. ----, ----, 130 S. Ct. 705, 710 (2010).
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`Case 1:09-cv-01825-CCB Document 55 Filed 12/28/11 Page 8 of 10
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`own legal fees, see Weichert Co. of Maryland, Inc. v. Faust, 19 A.3d 393, 400 n.2 (Md. 2011),
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`but Maryland Rule 1-341 creates an exception. Rule 1-341 allows that:
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`[i]n any civil action, if the court finds that the conduct of any party in maintaining
`or defending any proceeding was in bad faith or without substantial justification
`the court may require the offending party or the attorney advising the conduct or
`both of them to pay to the adverse party the costs of the proceeding and the
`reasonable expenses, including reasonable attorney's fees, incurred by the adverse
`party in opposing it.
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`Md. R. 1-341. An award of counsel fees pursuant to Rule 1–341 is, however, “an extraordinary
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`remedy, which should be exercised only in rare and exceptional cases.” Thomas v. Capital Med.
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`Mgmt. Associates, LLC, 985 A.2d 51, 71 (Md. App. 2009) (internal quotation marks and
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`citations omitted).
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`This is not one of those rare and exceptional cases. The imposition of attorney fees under
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`Rule 1-341 “requires an explicit finding that a claim or defense was in bad faith or without
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`substantial justification.” Zdravkovich v. Bell Atlantic-Tricon Leasing, Corp., 592 A.2d 498, 503
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`(Md. 1991). “The record must reflect that the trial judge made the requisite findings, as well as
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`the basis for those findings.” Id. Here, the Estate prevailed by default judgment because
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`defendant Unruly Productions took no action at all in its defense. If Unruly Productions took no
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`action at all, then there is no basis on which this court can conclude that the company’s defense
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`was made in bad faith or without substantial justification.
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`The court must also consider whether attorney fees are justified under Section 505 of the
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`Federal Copyright Act, which provides that:
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`[i]n any civil action under this title, the court in its discretion may allow the
`recovery of full costs by or against any party other than the United States or an
`officer thereof. Except as otherwise provided by this title, the court may also
`award a reasonable attorney's fee to the prevailing party as part of the costs.
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`Case 1:09-cv-01825-CCB Document 55 Filed 12/28/11 Page 9 of 10
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`17 U.S.C. § 505. As the language of the statute suggests, attorney fee awards in copyright cases
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`“are not to be made as a matter of course but, rather, as a matter of the court’s discretion.”
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`Superior Form Builders, Inc. v. Dan Chase Taxidermy Supply Co., 74 F.3d 488, 498 (4th Cir.
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`1996) (citing Fogerty v. Fantasy, Inc., 510 U.S. 517, 534 (1994)). The Fourth Circuit has
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`instructed district courts, in exercising this discretion, “to consider: (1) the motivation of the
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`parties; (2) the objective reasonableness of the legal and factual positions advanced; (3) the need
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`in particular circumstances to advance considerations of compensation and deterrence; and (4)
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`any other relevant factor presented.” Id.
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`As discussed above in connection with Md. Rule 1-341, it is not possible for the court to
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`weigh the motivation of the defendant, or the objective reasonableness of the legal and factual
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`positions advanced by the defendant, because the defendant failed to appear in this case and
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`default judgment was awarded. To the extent that the court has concluded, as a matter of law,
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`that Unruly Productions violated the Copyright Act, some damage award would seem to be
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`necessary to appropriately deter future violations. On the other hand, the failures of plaintiff’s
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`counsel to properly litigate this case—and the resulting lack of success in securing a damage
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`award—do not suggest that compensation is appropriate here. Accordingly, the court will not
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`hold Unruly Productions responsible for the plaintiff’s attorney fees and other costs.
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`In declining to award monetary damages, fees, and costs, the court does not disturb the
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`earlier default judgment against the defendant corporation. Pursuant to the Estate’s request for
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`injunctive relief in its amended complaint, the court will enjoin further exploitation of Ms.
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`Edgerton’s artistic works and intellectual property, and specifically will void both the alleged
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`management agreement and the CD agreement between Khia Edgerton and UPI Holdings, Inc.,
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`Case 1:09-cv-01825-CCB Document 55 Filed 12/28/11 Page 10 of 10
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`Unruly Records, Unruly Productions, U Management, and any other proprietary name through
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`which the defendant Unruly Productions does business. The judgment therefore ends any
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`alleged fiduciary relationship, power of attorney, or any other rights or privileges enumerated in
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`those two documents as to the name, likeness, work product, or royalties of Khia Edgerton.
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`Neither UPI Holdings, Inc., Unruly Productions, Unruly Records, U Management, nor any
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`officer or designee of those entities can claim rights as to the name, likeness, work product or
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`royalties of Khia Edgerton arising from those two documents or from any other source.
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`A separate order follows.
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`December 28, 2011
`Date
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` /s/
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` Catherine C. Blake
` United States District Judge
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`10