` Case 3:16-cv-03255-G Document 35 Filed 01/19/18 Page 1 of 7 PageID 400
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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF TEXAS
`DALLAS DIVISION
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`CIVIL ACTION NO.
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`3:16-CV-3255-G
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`CSI LITIGATION PSYCHOLOGY, LLC,
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`Plaintiff,
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`VS.
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`DECISIONQUEST, INC., ET AL.,
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`Defendants.
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`MEMORANDUM OPINION AND ORDER
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`Before the court is the motion for partial summary judgment filed by the
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`plaintiff CSI Litigation Psychology, LLC (“CSI”) (docket entry 27). For the reasons
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`stated below, the motion is denied.
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`I. BACKGROUND
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`CSI and the defendant DecisionQuest, Inc. (“DecisionQuest”) are competing
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`jury consulting companies. Plaintiff’s Brief in Support of Motion for Partial
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`Summary Judgment (“Motion”) at 2 (docket entry 28). The defendant Ann T.
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`Greeley (“Greeley”) serves as DecisionQuest vice president and as a jury consultant
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` Case 3:16-cv-03255-G Document 35 Filed 01/19/18 Page 2 of 7 PageID 401
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`for the company. Plaintiff’s First Amended Complaint (“Complaint”) ¶¶ 2, 20
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`(docket entry 21).
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`Dr. Bill Kanasky, Jr. (“Kanasky”), a jury consultant at CSI, published two
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`articles entitled Derailing the Reptile Safety Rule Attack: A Neurocognitive Analysis and
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`Solution (“Derailing”) and Debunking and Redefining the Plaintiff Reptile Theory
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`(“Debunking”). Id. ¶¶ 15, 17; see Appendix in Support of Plaintiff’s Motion for Partial
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`Summary Judgment (“CSI Appendix”) at APP004-019, 022-031 (docket entry 29).
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`CSI obtained federal copyrights to both works.1 CSI placed the works on its website,
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`and distributed them to current and potential clients. Complaint ¶ 18. Additionally,
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`Kanasky presented the papers to various seminars. Id. ¶ 19.
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`Greeley subsequently authored an article entitled A Brief Primer on the
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`ReptileTheory of Trial Strategy: Plaintiff Psychology and the Defense Response (“Primer”)
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`and distributed the paper at the American Bar Association annual conference in
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`2015. Id. ¶ 21; see CSI Appendix at 034-051. Greeley listed Derailing and Debunking
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`in the reference section of Primer. See CSI Appendix at APP051. CSI asserts that
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`Greeley plagiarized Dr. Kanasky’s work by copying portions of two sections of
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`The United States Copyright Office issued CSI Litigation Psychology,
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`LLC, a Certificate of Registration (Number TX 8-256-027) for Derailing with an
`effective date of October 17, 2016 and first publication date of April 1, 2014 and a
`Certificate of Registration (Number TX 8-256-024) for Debunking with an effective
`date of October 17, 2016 and first publication date of April 30, 2014. See CSI
`Appendix at APP020, 032.
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` Case 3:16-cv-03255-G Document 35 Filed 01/19/18 Page 3 of 7 PageID 402
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`Debunking and one section of Derailing into Primer and subsequently presenting Primer
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`to the same type of clients hired by CSI. Complaint ¶ 22; Motion at 5-7.
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`On November 21, 2016, CSI commenced this action against DecisionQuest.
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`On April 25, 2017, CSI amended its complaint and added Greeley as a party. CSI
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`asserts claims of federal copyright infringement and unfair competition and also seeks
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`a permanent injunction. See generally Complaint.
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`CSI moves for summary judgment only on its copyright infringement claim
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`against DecisionQuest. Motion at 1. CSI asserts that “[a] partial summary judgment
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`as to liability at this juncture will narrow and streamline discovery and other issues
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`and conserve this Court’s and the Parties’ resources.” Id. at 2. Specifically, CSI
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`moves the court for a ruling that there are no fact issues regarding (1)” CSI’s
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`ownership of a valid copyright which DecisionQuest copied in its article: A Brief
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`Primer on the Reptile Theory of Trial Strategy: Plaintiff Psychology and the Defense Response
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`(“Primer”)” and (2) “DecisionQuest, without authorization and in an especially
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`flagrant and obvious way, exactly copied word-for-word extensive portions of
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`Plaintiff’s works.” Id. (emphasis in the original).
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`II. ANALYSIS
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`A. Evidentiary Burdens on Motion for Summary Judgment
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`Summary judgment is proper when the pleadings and evidence on file show
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`that no genuine issue exists as to any material fact, and that the moving party is
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` Case 3:16-cv-03255-G Document 35 Filed 01/19/18 Page 4 of 7 PageID 403
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`entitled to judgment as a matter of law. FED. R. CIV. P. 56.2 “[T]he substantive law
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`will identify which facts are material.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
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`248 (1986). The movant makes such a showing by informing the court of the basis
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`of its motion and by identifying the portions of the record which reveal there are no
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`genuine material fact issues. See Celotex Corporation v. Catrett, 477 U.S. 317, 323
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`(1986). Once the movant makes this showing, the nonmovant must then direct the
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`court’s attention to evidence in the record sufficient to establish that there is a
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`genuine issue of material fact for trial. Id. at 323-24. To carry this burden, the
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`opponent must do more than simply show some metaphysical doubt as to the
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`material facts. Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corporation, 475
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`U.S. 574, 586 (1986). Instead, it must show that the evidence is sufficient to
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`support a resolution of the factual issue in its favor. Anderson, 477 U.S. at 249. All
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`of the evidence must be viewed, however, in a light most favorable to the motion’s
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`opponent. Id. at 255 (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59
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`(1970)).
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`The disposition of a case through summary judgment “reinforces the
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`purpose of the Rules, to achieve the just, speedy, and inexpensive determination of
`actions, and, when appropriate, affords a merciful end to litigation that would
`otherwise be lengthy and expensive.” Fontenot v. Upjohn Company, 780 F.2d 1190,
`1197 (5th Cir. 1986).
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` Case 3:16-cv-03255-G Document 35 Filed 01/19/18 Page 5 of 7 PageID 404
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`B. Copyright Infringement
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`To prevail on a claim for copyright infringement, a plaintiff must demonstrate
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`”(1) ownership of a valid copyright, and (2) copying of constituent elements of the
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`work that are original.” Feist Publications, Inc. v. Rural Telephone Service Company, 499
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`U.S. 340, 361 (1991)). “In any judicial proceedings the certificate of a registration
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`made before or within five years after first publication of the work shall constitute
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`prima facie evidence of the validity of the copyright and of the facts stated in the
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`certificate. . . .” 17 U.S.C. § 410(c); see also General Universal Systems, Inc. v. Lee, 379
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`F.3d 131, 141 (5th Cir. 2004) (“A certificate of registration, if timely obtained, is
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`prima facie evidence both that a copyright is valid and that the registrant owns the
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`copyright.”). CSI has established valid ownership in Derailing and Debunking.
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`To establish copying, a plaintiff must prove factual copying and substantial
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`similarity. General Universal Systems, 379 F.3d at 141. CSI may show factual copying
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`“either with proof of direct evidence of copying or through circumstantial evidence
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`demonstrating both (1) that the defendant had access to the copyrighted work and
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`(2) that the two works are ‘probatively’ similar.” Id. (citation omitted).
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`DecisionQuest has conceded access “[s]ince Greeley gave attribution to Dr. Kasansky
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`in Primer. . . .” See Defendants’ Brief in Opposition to Plaintiff’s Motion for Partial
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`Summary Judgment (“Response”) at 8 (docket entry 31); Motion at 4. Probative
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`similarity requires a plaintiff to demonstrate that the works “when compared as a
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` Case 3:16-cv-03255-G Document 35 Filed 01/19/18 Page 6 of 7 PageID 405
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`whole, are adequately similar.” Peel & Company v. The Rug Market, 238 F.3d 391, 397
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`(5th Cir. 2001). Reasonable minds could differ on the issue of probative similarity.
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`Id.
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`Next, a “side-by-side comparison must be made between the original and the
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`copy to determine whether a layman would view the two works as ‘substantially
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`similar’” to protectable elements of the infringed work. Id. at 395 (citation omitted);
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`see also General Universal Systems, 379 F.3d at 142. The Fifth Circuit has advised:
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`Although this question typically should be left to the
`factfinder, summary judgment may be appropriate if the
`court can conclude, after viewing the evidence and drawing
`inferences in a manner most favorable to the nonmoving
`party, that no reasonable juror could find substantial
`similarity of ideas and expression. If, after the plaintiff has
`established its prima facie case, the defendant offers
`evidence of independent creation, the plaintiff has the
`burden of proving that the defendant in fact copied the
`protected material.
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`Peel & Co., 238 F.3d at 395 (citations omitted); Flowserve Corporation v. Hallmark
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`Pump Company, No. 4:09-CV-0675, 2011 WL 1527951, at *4 (S.D. Tex. Apr. 20,
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`2011) (“[T]here are few instances in which courts in the Fifth Circuit have granted
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`summary judgment in favor of a plaintiff on a copyright infringement claim.”).
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`CSI contends that Greeley copied substantial portions of its protectable
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`elements. For example, CSI claims that Greeley copied 90 out of 110 words from a
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`section of Debunking in mostly the same order and maintains that the original
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` Case 3:16-cv-03255-G Document 35 Filed 01/19/18 Page 7 of 7 PageID 406
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`ordering of any unoriginal sentences demonstrates similarity. Motion at 5. On the
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`other hand, DecisionQuest claims that CSI took most of the language from common
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`sources. Response at 8; see also id. at 1 (“The portions of Plaintiff’s work found in
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`the Debunking article that Defendants allegedly copied are not protectable for lack of
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`originality as the terminology used in Debunking is identical to Wikipedia citations
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`regarding, priming, direct priming and repetition priming.”).
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`Here, after viewing the evidence in a manner most favorable to DecisionQuest
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`as the nonmoving party, it is possible that reasonable minds might differ as to
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`probative similarity or substantial similarity. Thus, CSI’s motion for partial summary
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`judgment is denied.
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`III. CONCLUSION
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`For the reasons stated above, CSI’s motion for partial summary judgment on
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`the defendants’ liability for copyright infringement is DENIED.
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`SO ORDERED.
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`January 19, 2018.
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`___________________________________
`A. JOE FISH
`Senior United States District Judge
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