IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF MISSOURI
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`Case No. 4:18-cv-01010-HFS
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`RONALD RAGAN, JR.,
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`Plaintiff,
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`v.
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`BERKSHIRE HATHAWAY
`AUTOMOTIVE, INC.,
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`Defendant.
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`ORDER
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`Presently pending before the court is plaintiff’s motion for clarification and reconsideration
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`(Doc. 112), and motion for leave to file a document under seal (Doc. 120). Defendant has filed a
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`motion for an order entering final judgment (Doc. 115). Plaintiff seeks relief pursuant to Federal
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`Rules of Civil Procedure 54(b), 59(e), and/or 60(b). (Doc. 113, p. 5).
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`Without reciting the facts in this case, suffice it to say that plaintiff continues to seek a
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`ruling that his Guest Sheet is copyrightable. The issue has been repeatedly considered, and after
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`careful review of the many briefings submitted in this inordinately lengthy proceeding, I found
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`that the questions solicited on plaintiff’s Guest Sheet were not unique, but, rather, appeared to be
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`routine information an automobile salesperson would seek to elicit from a customer visiting a
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`showroom or car lot. Citing, Utopia (Doc. 111, Order dated Mar. 10, 2022). Consequently,
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`defendant’s motion for judgment on the pleadings was granted. (Id).
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`Plaintiff seeks clarification of that Order, claiming that a ruling was not made as to whether
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`copyrightability can be decided as a matter of law as argued by defendant, or is a mixed question
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`of fact and law to be decided by a jury. In the event the ruling was decided as a matter of law,
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`Case 4:18-cv-01010-HFS Document 127 Filed 10/11/22 Page 1 of 6
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`plaintiff claims that it would be determinative of an appeal to the U.S. Court of Appeals. And, if
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`the ruling was decided as a mixed question, plaintiff seeks reconsideration of the ruling by granting
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`him leave to amend to present new evidence.
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`As noted above, plaintiff seeks relief in the form of “clarification and reconsideration”
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`under Federal Rules of Civil Procedure 54(b), 59 (e), and/or 60(b).1 The Federal Rules do not allow
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`for motions to clarify, and, the court must construe the motion according to the type of relief
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`sought. Schoenbaum v. E.I. DuPont de Nemours and Co., 2007 WL 3331291 *1 (E.D.Mo.). Thus,
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`the question of reconsideration pursuant to Fed.R.Civ.P. 60(b) will be addressed below.
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`Whatever the precise authority, courts do sometimes entertain motions identified as
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`motions for clarification. G2 Database Marketing, Inc. v. Stein, 2020 WL 6484788 * 3 (S.D.Iowa).
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`However, the Eighth Circuit Court of Appeals takes a dim view of motions for clarification that
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`simply attempt to relitigate already decided issues, concluding that they may warrant sanctions for
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`unreasonably and vexatiously multiplying the proceedings and wasting everyone’s time. G2,
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`citing, Vallejo v. Amgen, Inc., 903 F.3d 733, 749 (8th Cir. 2018).
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`There is sound reasoning for the Eighth Circuit’s unflattering opinion of clarification
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`motions. Here, plaintiff has not cited any relevant authority, and his reliance on Burton v. Johnson,
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`Rule 54(b) provides that any order or other decision, however, designated, that adjudicates fewer than all the
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`claims or rights and liabilities of fewer than all the parties may be revised at any time before the entry of a judgment
`adjudicating all the claims and all the parties’ rights and liabilities. Avery v. E&M Services, LLC, 2022 WL 4395480
`*4 (D.N.D). The exact standard applicable to granting such a motion is not clear, though it is typically held to be less
`exacting than a motion under Rule 59(e), which is in turn less exacting than the standards enunciated in Rule 60(b).
`Id.
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`Fed.R.Civ.P. 59(e) was adopted to clarify a district court’s power to correct its own mistakes in the time
`period immediately following entry of judgment, Innovative Home Health Care, Inc. v. P.T.-O.T. Associates of the
`Black Hills, 141 F.3d 1284, 1286 (8th Cir. 1998)(such motions cannot be used to introduce new evidence, tender new
`legal theories, or raise arguments which could have been offered or raised prior to entry of judgment); and, it must be
`filed within ten days of the entry of judgment. Schoenbaum v. E.I. DuPont de Nemours and Co., 2007 WL 3331291
`*2 (E.D. Mo.).
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`975 F.2d 690 (10th Cir. 1992), is unpersuasive and does not support his argument for clarification.2
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`Contrary to plaintiff’s contention, the ruling in this case is not ambiguous. The ruling states, quite
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`clearly, that the Guest Sheet was not copyrightable because it was designed for recording
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`information that does not convey information and/or inseparable instructions. (Doc. 111, Order
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`dated March 10, 2022, p. 14). Finding no genuine issue of material fact as to its copyrightability,
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`I held that defendant was entitled to judgment as a matter of law. (Id). Plaintiff’s argument to the
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`contrary is therefore disingenuous.
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`Reconsideration
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`There is no doubt that the crux of plaintiff’s motion revolves around the purported copyrightability
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`of the Guest Sheet, and he seeks reconsideration so that he can amend his pleadings to include the
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`deposition of Peter DeDecker, an automotive sales manager who began his 40-year career in the
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`automotive business with BHA. The record indicates that in a case pending before the District
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`Court for the District of Kansas, Ragan v. VinSolutions, Inc., 20-cv-02222-DDC-JPO, on July 8,
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`2021, DeDecker was noticed as a witness for defendant. (Doc. 114-2, p. 2). Through the
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`declaration of his counsel, Andrew Grimm, plaintiff claims that much of DeDecker’s deposition
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`testimony (taken the day after the ruling in this case) in the Kansas case is “highly important to
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`this case;” primarily due to his long career in automotive sales and training and prior employment
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`with Van Tuyl – which was later acquired by defendant (Doc. 112-1, p. 2). According to plaintiff,
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`2 Plaintiff cites Burton v. Johnson, 975 F.2d 690 (10th Cir. 1992), a habeas action, in which the petitioner challenged
`her state court conviction for first-degree murder. Id, at 691. In an Order dated December 27, 1989, the district court
`granted the petition, and ordered that the petitioner be released unless a new trial is commenced within 90 days; both
`parties appealed the court’s determination, and litigation continued in the matter. Id, 691-93. The Eighth Circuit
`ultimately found that the district court’s Order was “ambiguous” as to the intended effect of the expiration of the 90-
`day period, and it was unclear what type of “release” the district court intended in ordering that the petitioner “be
`released unless a new trial is commenced within 90 days.” Id, at 694. Thus, the matter was remanded to the district
`court for interpretation and clarification of the Order, pursuant to Fed.R.Civ.P. 60(a). Id.
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`DeDecker acknowledged, among other things, that the Guest Sheet “was a novel, and original,
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`expression of a general idea for a customer-interview sheet.” (Id). Contrary to plaintiff’s
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`contentions, DeDecker’s opinion is not dispositive on the issue of copyrightability of the Guest
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`Sheet; rather, it is just that, the opinion of another employee in the automotive sales venue. Plaintiff
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`also claims that upon learning of the DeDecker testimony in the Kansas case, for months he
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`attempted to schedule DeDecker’s deposition, but defendant employed delaying tactics until a day
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`after the ruling was issued in this case. (Doc. 122, p. 13).
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`Giving plaintiff the benefit of the doubt that the ruling granting defendant’s motion for
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`judgment on the pleadings was not a final judgment, plaintiff’s motion for reconsideration will not
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`be held untimely. Williams v. Employers Mutual Casualty Company, 845 F.3d 891, 898 (8th Cir.
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`2017)(a district court decision is not final, and thus not appealable, unless there is some clear and
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`unequivocal manifestation by the trial court of its belief that the decision made, so far as the court
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`is concerned, is the end of the case). And, the motion will be considered as a motion seeking relief
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`under Rule 60(b).
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`Motions for reconsideration are nothing more than Rule 60(b) motions when directed at
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`non-final orders. Elder–Keep v. Aksamit, 460 F.3d 979, 984 (8th Cir.2006). Rule 60(b) provides
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`that a court may reconsider a prior ruling for one of the following reasons:
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`(1) mistake, inadvertence, surprise, or excusable neglect;
`(2) newly discovered evidence that, with reasonable diligence, could not have been discovered in
`time to move for a new trial under Rule 59(b);
`(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by
`an opposing party;
`(4) the judgment is void;
`(5) the judgment has been satisfied, released or discharged; it is based on an earlier judgment that
`has been reversed or vacated; or applying it prospectively is no longer equitable; or
`(6) any other reason that justifies relief.
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`Rule 60(b) relief is an “extraordinary remedy” that is justified only in “exceptional
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`circumstances,” Prudential Ins. Co. of America v. Nat'l Park Med. Ctr., Inc., 413 F.3d 897, 903
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`(8th Cir.2005), and “[e]xceptional circumstances are not present every time a party is subject to
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`potentially unfavorable consequences as a result of an adverse judgment properly arrived at.”
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`Atkinson v. Prudential Prop. Co., 43 F.3d 367, 373 (8th Cir.1994) (in the context of a motion under
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`Rule 60(b)(6) relief will only be granted where the “exceptional circumstances have denied the
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`moving party a full and fair opportunity to litigate his claim and have prevented the moving party
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`from receiving adequate redress.” Harley v. Zoesch, 413 F.3d 866, 871 (8th Cir.2005). As such, a
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`Rule 60(b)(6) motion that does nothing more than attempt to reargue issues already decided should
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`be denied. Broadway v. Norris, 193 F.3d 987, 989–90 (8th Cir.1999) (in their motion for
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`reconsideration, defendants did nothing more than reargue, somewhat more fully, the merits of
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`their claim of qualified immunity. This is not the purpose of Rule 60(b)(6).... It is not a vehicle for
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`simple reargument on the merits.).
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`That is precisely what plaintiff attempts to do here; present cumulative argument – by way
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`of the DeDecker deposition - on an issue that has been repeatedly reviewed by this court, and found
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`to be lacking support for plaintiff’s argument that his Guest Sheet does not fall within the “blank
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`form” exception to copyrightability.
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`Accordingly, plaintiff’s motions for reconsideration (Doc. 112) and to seal document (Doc.
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`120) are DENIED. It is further
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`ORDERED that defendant’s motion to enter final judgment (Doc. 115) is GRANTED. The
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`copyright infringement claim is DISMISSED, and the Clerk of the Court is directed to enter final
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`judgment in this case.
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`Dated: October 11, 2022
`Kansas City, Missouri
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`/s/ Howard F. Sachs
`Honorable Howard F. Sachs
`UNITED STATES DISTRICT JUDGE
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`Case 4:18-cv-01010-HFS Document 127 Filed 10/11/22 Page 6 of 6
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