throbber
Case 1:05-cv-03900-RMB-JS Document 117 Filed 08/30/07 Page 1 of 20 PageID: 1668
`
` [Doc. Nos. 80, 88, 96 & 108]
`[NOT FOR PUBLICATION]
` IN THE UNITED STATES DISTRICT COURT
`
`
`FOR THE DISTRICT OF NEW JERSEY
`CAMDEN VICINAGE
`
`LARRY BUMGARNER,
` Plaintiff,
`
`v.
`JANE ANN HART, et al.,
`Defendants.
`
`
`Civil No. 05-3900 (RMB)
`
`OPINION
`
`Appearances:
`Larry Bumgarner
`205 Toulon Ave.
`Egg Harbor Township, NJ 08234
`Plaintiff, pro se
`Maureen Caryn Shay
`Fox Rothschild LLP
`1301 Atlantic Avenue
`Suite 400
`Atlantic City, NJ 08402
`Attorney for Defendants Jane Ann Hart and JAH Meeting
`Planners, Inc.
`Robert L. Loeffelad
`Seth Grossman & Associates
`453 Shore Road
`Somers Point, NJ 08244
`Attorney for Defendant Dandy.net
`Gary A. Devito
`Zarwin, Baum, Devito, Kaplan, Shaer & Toddy, PC
`Five Greentree Centre
`Suite 105
`Marlton, NJ 08053
`Attorney for Defendant City of Atlantic City
`Louis J. Nieldelman
`
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`Cooper Levenson
`1125 Atlantic Avenue
`Third Floor
`Atlantic City, NJ 08401
`Carmelo T. Torraca
`Cooper Levenson
`1125 Atlantic Avenue
`Third Floor
`Atlantic City, NJ 08401
`Attorneys for Defendants Mary Ann Benianati, Rona
`Zucker Kaplan, Alan I. Kalb, and Cooper Levenson April
`Niedelman & Wagenheim, P.A.
`
`BUMB, United States District Judge:
`This matter comes before the Court upon four motions pending
`in the above captioned case, itself a consolidated docket of two
`actions, [Docs. 05-3900 and 06-142], filed by Plaintiff, pro se,
`Larry Bumgarner. In the first action, [Doc. 05-3900], Plaintiff
`complains of copyright infringement by his former paramour,
`Defendant Jane Ann Hart, his former employer, Defendant Jane Ann
`Hart Meeting Planners, Inc., and an internet service provider,
`Dandy.net. In the second action, [Doc. 06-142], now consolidated
`with and under the above caption, Plaintiff complains his car was
`unlawfully seized, in violation of his Constitutional rights, by
`Defendants Jane Ann Hart and Jane Ann Hart Meeting Planners,
`Inc., the City of Atlantic City and city police officers John
`Miller and Mark Pizzutillo (under whose authority Jane Ann Hart
`seized the vehicle), and Jane Ann Hart’s previous counsel Cooper
`Levenson April Niedelman & Wagenheim, P.A., a law firm, and the
`individual attorneys, Mary Ann Benianati, Rona Zucker Kaplan, and
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`Alan I. Kalb (all of whom allegedly conspired to unlawfully seize
`the vehicle from Plaintiff). At the time of the seizure of the
`car, Defendants Jane Ann Hart and Jane Ann Hart Meeting Planners,
`Inc., had made the right to possess the car an issue in the first
`action.
`Defendant Dandy.net now moves for summary judgment on
`Plaintiff’s copyright claim. Defendant Jane Ann Hart and Jane
`Ann Hart Meeting Planners, Inc., join that motion and bring their
`own motion for summary judgment on Plaintiff’s copyright and
`Constitutional claims. Defendant City of Atlantic City moves to
`dismiss Plaintiff’s Constitutional claims. Finally, Plaintiff
`moves to dismiss counterclaims alleged by Defendants Cooper
`Levenson April Niedelman & Wagenheim, P.A., Mary Ann Beninati,
`Rona Zucker Kaplan, and Alan Kalb.
`
`I.
`
`Statement of Facts
`The following facts are drawn from the record and viewed in
`a light most favorable to Plaintiff, Larry Bumgarner (“Plaintiff”
`or “Bumgarner”).
`Plaintiff and Defendant Jane Ann Hart (“Hart”) began a
`personal relationship in May 2001, and began living together in
`early 2002. In October 2001, Hart, who had been in the meeting
`planning business since 1987, incorporated Jane Ann Hart Meeting
`Planners, Inc. (“JAH”). Bumgarner prepared the incorporation
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`documents but never had any ownership interest in the
`corporation. Bumgarner claims that Hart promised to make him a
`half owner but admits that a formal agreement was never reached.
`After the formation of JAH, Bumgarner did work on behalf of the
`company such as bookkeeping, sales lead research, and assisted
`with sales calls. Throughout his relationship with Hart and JAH,
`Bumgarner proposed numerous contract terms to formalize the
`business relationship but the parties never reached agreement on
`terms.
`In 2002, Hart and Bumgarner agreed that Bumgarner should
`create a website for JAH. Plaintiff set about creating a website
`using books on webdesign and programing purchased by the company.
`The website, while a work in progress, was published and live on
`the internet by early 2002. Bumgarner and Hart collaborated on
`the website with Hart supplying content such as photographs,
`tasks lists, budget analysis, client lists, and other marketing
`materials.
`During this time JAH and Hart paid all of Bumgarner’s living
`expenses. In addition to the usual living expenses Bumgarner had
`use of a 2003 Nissan Pathfinder. JAH leased the vehicle from
`Nissan and paid for insurance and gas. Bumgarner had unlimited
`and exclusive use of the car. Hart claims these expenses were
`paid for in exchange for Bumgarner’s work on behalf of JAH. Yet
`both agree there was no formal agreement between them. Moreover,
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`Bumgarner and Hart continued an intermittent personal
`relationship while Bumgarner worked for JAH.
`In late 2004, JAH obtained a client, Biacore Corporation,
`who hired JAH to create a web-based registration system for a
`planned trade show. Hart asked Bumgarner to create the system.
`The record is unclear of the exact date but, sometime in 2005
`Bumgarner finished a website through which people could register
`to attend Biacore’s trade show. The page included an online
`registration form and a database that processed payment of the
`registration fee. The system began processing registrations on
`June 1, 2005.
`In March 2005, Hart and Bumgarner ended their professional
`and personal relationship. Bumgarner moved out of the
`condominium he was sharing with Hart. Immediately afterward,
`Plaintiff proposed several employment contracts to Hart, none of
`which were accepted. Plaintiff claims that at some point,
`exactly when is unclear, Hart promised him continued use of the
`car so long as JAH retained a particular client, Charter
`Partners, Inc. Yet, Bumgarner submitted evidence, from the
`contract negotiations, that Bumgarner “had not agreed to
`anything.” (See Pl.’s Compl. ¶ 25).
`As the relationship between Hart and Bumgarner deteriorated,
`Hart took steps to block Bumgarner’s access to JAH’s websites and
`e-mail systems. When Bumgarner discovered this he made phone
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`calls and sent letters to Hart, JAH’s clients, and the new
`website hosting service, Dandy.net. In these communications
`Bumgarner claimed to own the copyright to the websites and
`insisted that control over the sites be returned to him.
`Bumgarner’s efforts were to no avail and, on August 5, 2005, he
`filed a Complaint in this Court alleging one count of copyright
`infringement. At this time, only JAH, Hart, and Dandy.net remain
`Defendants to this claim.
`A couple weeks later, on August 15, 2005, Bumgarner sought
`to copyright the work that was the subject of his Complaint.
`Bumgarner filed two copyright registrations. The first
`registration was for the JAH website, www.jahart.com. The second
`was for the registration form and databases for the Biacore trade
`show. The Copyright Office registered Bumgarner’s copyright for
`the JAH website effective October 12, 2005. The registration
`listed the date of first publication as January 9, 2005. The
`Copyright Office rejected the second registration for the Biacore
`trade show registration form and databases.
`While these events were transpiring Bumgarner continued to
`drive the car leased and paid for by JAH. Hart made a demand for
`the car but was rebuffed. On September 13, 2005, Hart issued
`Plaintiff an ultimatum: return the Pathfinder or assume
`responsibility for the lease payments and insurance premiums by
`September 19, 2005; Plaintiff responded that he would not return
`
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`the car. On the day of the deadline Defendants JAH and Hart
`filed an Answer to Bumgarner’s Complaint and included a Counter-
`Claim to reclaim possession of the car. Hart then, at the
`suggestion and with the assistance of her counsel at Cooper
`Levenson April Niedelman & Wagenheim, P.A. (Mary Ann Benianati,
`Rona Zucker Kaplan and Alan I. Kalb) (collectively “Cooper
`Levenson” or the “Cooper Levenson Defendants”), simultaneously
`sought relief in state court. Hart went to the City of
`Brigantine Police Department and reported the car stolen. Hart
`and the Cooper Levenson Defendants never disclosed that the car
`was already the subject of litigation in this Court.
`The City of Brigantine issued a summons for Bumgarner to
`appear in municipal court to answer Hart’s charges. Prior to the
`appearance date, however, Hart located the car in the City of
`Atlantic City. Hart called the City of Atlantic City police
`department which dispatched Officers John Miller and Mark
`Pizzutillo. Bumgarner returned to the car and Miller and
`Pizzutillo demanded he turn the keys over to Hart on the basis of
`the summons issued by the City of Brigantine Municipal Court.
`Bumgarner complied and Hart took possession of the car. She
`brought the car’s contents to the Cooper Levenson Defendants who
`sent an itemized list to Bumgarner and invited him to retrieve
`them at their office. Hart dismissed her counterclaim to
`possession of the car on October 17, 2005.
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`These events inspired Bumgarner to file a second Complaint
`in this Court. This Complaint, originally docketed as number 06-
`142 and now consolidated with this action, alleged a violation of
`his Fourth Amendment right to be free from unreasonable seizures.
`Bumgarner named Hart, JAH, Hart’s counsel the Cooper Levenson
`Defendants, the City of Atlantic City, the City of Brigantine,
`and Atlantic City officers Miller and Pizzutillo as Defendants.
`This Court previously granted the City of Brigantine judgment on
`Bumgarner’s claims.
`Currently before the Court are four motions. These include
`a motion for summary judgment by Defendant Dandy.net, [Doc. 05-
`3900, No. 80], a motion for summary judgment by Defendants Hart,
`and JAH, [Doc. 05-3900, No. 88], a motion to dismiss by City of
`Atlantic City, [Doc. 05-3900, No. 96], and a motion to dismiss
`the Cooper Levenson Defendants’ Counter-Claims by Plaintiff
`Bumgarner [Doc. 05-3900, No. 108].
`
`II. Standard
`Summary judgment is appropriate when the materials of record
`“show that there is no genuine issue as to any material fact and
`that the moving party is entitled to judgment as a matter of
`law.”1 Fed. R. Civ. P. 56(c). In deciding whether there is a
`
`1
`
`The moving party always bears the initial burden of
`showing that no genuine issue of material fact exists, regardless
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`disputed issue of material fact, the court must view the evidence
`in favor of the non-moving party by extending any reasonable
`favorable inference to that party; in other words, “the nonmoving
`party’s evidence ‘is to be believed, and all justifiable
`inferences are to be drawn in [that party’s] favor.’” Hunt v.
`Cromartie, 526 U.S. 541, 552 (1999) (quoting Anderson v. Liberty
`Lobby, Inc., 477 U.S. 242, 255 (1986)). The threshold inquiry is
`whether there are “any genuine factual issues that properly can
`be resolved only by a finder of fact because they may reasonably
`be resolved in favor of either party.” Liberty Lobby, 477 U.S. at
`250; Brewer v. Quaker State Oil Ref. Corp., 72 F.3d 326, 329-30
`(3d Cir. 1995) (citation omitted).
`
`III. Analysis
`Atlantic City’s Motion
`Atlantic City moves to dismiss on the grounds that Plaintiff
`has neither alleged facts nor produced evidence that would
`support municipal liability for the acts of Atlantic City Police
`Officers John Miller and Mark Pizzutillo. A municipality is
`liable for the constitutional torts of its employees only if the
`tortious conduct is the product of a policy or custom of the
`
`of which party ultimately would have the burden of persuasion at
`trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986);
`Hugh v. Butler County Family YMCA, 418 F.3d 265, 267 (3d Cir.
`2005).
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`municipality. Grazier v. City of Philadelphia, 328 F.3d 120, 124
`(3d Cir. 2003). Atlantic City points out that Plaintiff fails to
`allege facts or provide the evidence of a municipal policy or
`custom that led to Officers Miller and Pizzutillo’s allegedly
`unlawful seizure of the car.
`Plaintiff claims this Court has already rejected this
`argument. To the contrary, this Court dismissed Defendant City
`of Brigantine on precisely this ground. Atlantic City, however,
`had not previously raised this argument in defense of the claims
`against it. It does so now. Atlantic City is correct that
`Plaintiff has not alleged facts that a policy or custom
`contributed to the alleged unlawful seizure of Plaintiff’s
`vehicle. A reading of the Complaint is devoid of any such
`allegation. Accordingly, Defendant Atlantic City’s motion will
`be granted and Plaintiff’s claim against the City dismissed.
`Dandy.net’s Motion
`Dandy.net argues first that Plaintiff’s claim for copyright
`infringement is barred. Under 17 U.S.C. § 411, “no action for
`infringement . . . shall be instituted until registration of the
`copyright claim has been made . . . .” Plaintiff brought his
`copyright suit on August 5, 2005, before he applied for a
`copyright on August 17, 2005, and received a copyright
`certificate effective October 12, 2005. Dandy.net characterizes
`Plaintiff’s failure to register his copyright first as a
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`jurisdictional defect that bars the claim.
`However, Plaintiff sought to file an Amended Complaint on
`January 4, 2007, which included the copyright claims by
`reference. [Doc. No. 100, Ex. A]. This Court permitted the
`filing of the Amended Complaint on June 7, 2007. Because the
`filing of an Amended Complaint supersedes the earlier Complaint,
`International Controls Corp. v. Vesco, 556 F.2d 665, 668 (2d Cir.
`1977), and post-dates the registration of the copyright, Section
`411 should not bar the claim. This would seem to conflict with
`the time-of-filing rule which requires that, “jurisdiction
`depending on the condition of the party is governed by that
`condition, as it was at the commencement of the suit.” Grupo
`Dataflux v. Atlas Global Group, L.P., 541 U.S. 567, 575 (2004)
`(quoting Conolly v. Taylor, 27 U.S. 556, 565 (1829). However,
`the time-of-filing rule applies to subject matter jurisdiction
`and not the statutory requirements of a cause of action. Id. at
`574.
`This Court has original jurisdiction over claims that arise
`under federal law. 28 U.S.C. § 1331. There is no dispute that
`Plaintiff’s claim arises under federal copyright law, 17 U.S.C. §
`101 - et seq. Thus, this Court has jurisdiction over Plaintiff’s
`claim. Section 411 is a prerequisite to bringing a valid claim.
`Likewise, the section presents a defense against a claim for
`infringement made prior to registration of the copyright. The
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`failure to register under section 411 before filing a complaint
`for infringement does not eliminate this Court’s jurisdiction
`over matters arising under federal law. Although Dandy.net
`characterizes the defect as jurisdictional in nature, in truth
`the defect is in the claim not in the jurisdiction; the time-of-
`filing rule would not apply here. To that extent, the Amended
`Complaint properly cures the deficient claim. Accordingly,
`Dandy.net’s motion for judgment on this ground is denied.
`Defendant also seeks judgment in its favor on any claim by
`Plaintiff for actual damages. Plaintiff’s Complaint includes a
`prayer for relief in the form of actual damages. Defendant
`Dandy.net argues that Plaintiff has produced no evidence of
`actual damages. In addition, it asserts, Plaintiff has since
`dropped any claim to actual damages and only seeks statutory
`damages. (See, e.g., Dandy.net’s Br., Ex. J (Pl.’s Answers to
`Interrogatories)). Indeed, Plaintiff, in his opposition, does
`not dispute this and repeats his prayer for statutory damages
`only. (Pl.’s Opp. [Doc. 91] at 3, ¶ 5; see also, id. at 7, ¶ 49,
`and id. at 12, ¶ 66.2). Accordingly, Defendant Dandy.net will be
`granted summary judgment on Plaintiff’s claim for actual damages.
`Defendant next argues that it should be granted judgment in
`its favor on Plaintiff’s claim for statutory damages. Statutory
`damages are unavailable where an “infringement of copyright
`commenced after first publication of the work and before the
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`effective date of its registration, unless such registration is
`made within three months after the first publication of the
`work.” 17 U.S.C. § 412(2). According to Plaintiff’s copyright
`certificate, the website was first published on January 9, 2005;
`the forms and database was first published on January 15, 2005.
`Plaintiff claims his copyright was infringed beginning “on or
`about July 14, 2005.” (Pl.’s Compl. ¶ 36). The Copyright Office
`registered the copyright for the website effective October 12,
`2005. Therefore, Dandy.net argues, Plaintiff is not entitled to
`statutory damages because the alleged infringement commenced
`after publication but before registration, and Plaintiff did not
`register his copyright within three months of first publication.
`Plaintiff counters that the copyrighted work was first
`published on June 1, 2005, when the site was first used to
`process transactions for the Biocore trade show. Plaintiff
`conflates two different works, one copyrighted and the other not.
`It is undisputed that the website www.jahart.com was first
`published as early as 2002 but certainly no later than January 9,
`2005. It was in late 2004 when Plaintiff was asked to produce an
`online registration form and database for the Biacore trade show.
`Plaintiff submitted two copyright registrations, one for the
`website and a second for the online registration form and
`database. Only the first, the website www.jahart.com, was
`registered and with a first published date of January 9, 2005.
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`The copyright office rejected the application for the
`registration form and database. Thus, Plaintiff’s evidence that
`the registration form and database were first published on June
`1, 2005 is irrelevant. It is only the first publication of the
`registered work, the website www.jahart.com, that is of
`consequence.
`It is now apparent that Dandy.net is correct that
`Plaintiff’s claim of statutory damages is barred by 17 U.S.C. §
`412. Statutory damages for an infringement that commences after
`publication but prior to copyright registration is available only
`where a plaintiff registers the work within three months of
`publication. 17 U.S.C. § 412(2). Plaintiff never received a
`copyright registration for the Biacore trade show registration
`form and database; that work cannot be a basis of an infringement
`claim. Id. Plaintiff received a copyright effective October 12,
`2005, for the website only. The application was filed on August
`15, 2005. The site was first published on or before January 9,
`2005. Plaintiff did not register, nor apply, until well after
`three months after first publication. This is an undisputed fact
`that will not change with further discovery. Accordingly,
`Defendant is entitled to summary judgment on Plaintiff’s claim
`for statutory damages.
`Plaintiff could now receive only equitable relief on his
`claim. However, the undisputed record states that the website is
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`no longer on the internet. Therefore, Plaintiff’s claim to
`equitable relief in the form of an injunction is moot.
`Accordingly, Defendant Dandy.net is entitled to summary judgment
`on Plaintiff’s Complaint because Plaintiff cannot recover
`statutory damages or equitable relief (and concedes any claim for
`actual damages).
`Jane Ann Hart and JAH Meeting Planners, Inc.’s Motion
`Jane Ann Hart and JAH Meeting Planners, Inc. (collectively
`“Hart”) joined Dandy.net’s motion for summary judgment. [Doc.
`81]. Hart is therefore also entitled to judgment on Plaintiff’s
`copyright claim. In the alternative, Hart argues that
`Plaintiff’s claim fails because Hart was a co-author of the work.
`Hart further argues that Plaintiff’s contractual right to the
`Nissan was properly terminated.
`Hart’s additional argument for judgment in her favor is
`unopposed and warrants brief discussion. Hart asserts that the
`website was a joint work between both Hart and Plaintiff. “The
`authors of a joint work are co-owners of copyright in the work,”
`17 U.S.C. § 201(a), and each is entitled to distribute the joint
`work. Baker v. Robert L. Lappin Charitable Trust, 415 F. Supp.
`2d 473, 487 (S.D.N.Y. 2006). Moreover, a joint copyright holder
`cannot bring an infringement action against the co-author.
`Weissmann v. Freeman, 868 F.2d 1313, 1318 (2d Cir. 1989). Hart
`supplied pictures, client and task lists, marketing materials and
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`more for the website. Hart states that it was the intention of
`Plaintiff and Hart that the website be the product of their co-
`authorship.
`Plaintiff does not dispute these facts. Plaintiff, in his
`opposition of July 9, 2007, argues only that the copyright
`registration vests him with sole copyright over the website.
`Plaintiff’s copyright registration lists only himself as the
`author of the work. He does not dispute the evidence presented
`by Hart that the work is in fact the product of both their
`efforts; he does not claim to be the sole author of the work.
`Hart’s contributions to the work are a material fact relevant to
`the copyright of a work. Baker v. Robert I Lappin Charitable
`Foundation, 415 F. Supp. 2d 473, 487 (S.D.N.Y. 2006). The
`omission of material facts from a copyright application
`“constitutes grounds for holding the registration invalid and
`incapable of supporting an infringement action.” Masquerade
`Novelty v. Unique Industries, Inc., 912 F.2d 663, 667 (3d Cir.
`1990). Here, Plaintiff omitted mention of the undisputed
`material fact that Hart co-authored the work. On the record
`before the Court Plaintiff has not put forward any evidence to
`refute Hart’s claim of co-authorship and, consequently, the
`invalidity of the copyright registration. Moreover, because the
`evidence before this Court shows that Hart is a co-author of the
`work, and is thus entitled to distribute the joint work,
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`Plaintiff’s claim of infringement fails. Again, these facts are
`not disputed by Bumgarner, nor does he allege facts inconsistent
`with Hart’s evidence. Accordingly, Defendants are entitled to
`judgment on Plaintiff’s copyright claim.
` Hart also seeks judgment on Plaintiff’s claims arising out
`of the seizure of the vehicle. Plaintiff has vehemently insisted
`that he had a contract with Hart for indefinite use of the
`Pathfinder. Although Plaintiff does not assert a breach of
`contract claim, the existence of a valid contractual right to the
`possession and use of the vehicle is a prerequisite for
`Plaintiff’s Constitutional claims for unlawful seizure. See
`Brown v. Muhlenberg Township, 269 F.3d 205, 209 (3d Cir. 2001)
`(quoting United States v. Jacobsen, 466 U.S. 109, 113 (1984))
`(stating that “meaningful interference with an individual’s
`possessory interest in that property” amounts to a seizure). It
`is Hart’s contention that a contract as alleged by Plaintiff is
`terminable at will. Hart seeks, therefore, dismissal of
`Plaintiff’s claims based on the seizure of the vehicle because he
`lacked a valid possessory interest once the contract was properly
`terminated.
`Hart argues that Plaintiff’s claim is premised on a contract
`for indefinite employment and use of the vehicle during that
`employment. Hart argues such indefinite employment contracts are
`at will, Savarese v. Pyrene Manufacturing Co., 9 N.J. 595, 601
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`(1952). Plaintiff argues, however, that the contract was not one
`for employment with concomittant use of the vehicle. Rather,
`Plaintiff has pled that the contract was specifically for use of
`the vehicle itself. (See Pl.’s Compl. ¶ 22 (Hart “promised that
`as long as she had Charter Partners, Inc. as a client Plaintiff
`would be paid and could use the car.”)).
`Plaintiff claims he had a contract to possess the vehicle so
`long as Hart retained a particular client. Plaintiff has made
`allegations that he had a contract that granted him a possessory
`right to the car. Discovery has not yet concluded. [Doc. No.
`114 (setting discovery deadline of October 1, 2007)] “It is a
`first principle of federal civil procedure that litigants ‘are
`entitled to discovery before being put to their proof.’” Alston
`v. Parker, 363 F.3d 229, 233 n.6 (3d Cir. 2004) (quoting Bennett
`v. Schmidt, 153 F.3d 516, 519 (7th Cir. 1998)). Plaintiff is
`entitled to finish the discovery process to obtain evidence of
`the contract he alleges. At this stage of the proceedings
`summary judgment on this claim is inappropriate and will not be
`considered.
`Bumgarner’s Motion
`The final motion is Plaintiff Bumgarner’s motion to dismiss
`the Counter-Claims of the Cooper Levenson Defendants. The Cooper
`Levenson Defendants have filed five Counter-Claims against
`Plaintiff for his actions in pursuing this litigation. Although
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`Plaintiff styles his motion as a motion to dismiss it relies on
`several pieces of evidence that lie outside the pleadings. Where
`a motion relies on evidence outside of the pleadings it should be
`treated as a motion for summary judgment. Fed. R. Civ. P. 12(b).
`As already noted, summary judgment on a claim is inappropriate
`where discovery is ongoing. Alston, 363 F.3d at 233 n.6.
`Discovery on the issues raised by the Cooper Levenson Defendants
`in their Counter-Claims, and by Plaintiff’s motion,2 is not
`complete. Accordingly, Plaintiff’s motion will not be considered
`at this time and will be denied without prejudice.
`
`IV. Conclusion
`For the reasons discussed above, Defendant City of Atlantic
`City’s motion to dismiss will be granted; Defendant Dandy.net’s
`motion for summary judgment will be granted; Defendants Jane Ann
`Hart and JAH Meeting Planners, Inc.’s motion for summary judgment
`will be granted as to Plaintiff’s copyright claim and denied as
`
`2
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`In his motion, Plaintiff makes some vague allegations
`that the Cooper Levenson’s conduct, including presumably the
`Counter-Claims, is for impermissible ends. (See, e.g., Pl.’s Br.
`at ¶ 16 (referring to allegations of “cover[ing] up”
`constitutional abuses and “fix[ing] a federal action.”)). The
`Court is mindful that litigation “for the purpose of harassing or
`maliciously injuring a person,” Model Rules of Professional
`Conduct R. 3.1 cmt (1983), may be a violation of New Jersey’s
`Rules of Professional Conduct. N.J. Rules of Prof’l Conduct R.
`3.1 and R. 3.2; see also, Model Rules of Prof’l Conduct 3.1 cmt 1
`(2002). The Court is confident that counsel in this case will
`litigate these issues with the utmost regard for their
`obligations to their clients, the Court, and their profession.
`19
`
`

`
`Case 1:05-cv-03900-RMB-JS Document 117 Filed 08/30/07 Page 20 of 20 PageID: 1687
`
`to Plaintiff’s Constitutional claim; Plaintiff’s motion to
`dismiss the Cooper Levenson Defendants’ Counter-Claims will be
`denied without prejudice. An appropriate order will issue this
`date.
`
`Date: August 30, 2007
`
`s/Renée Marie Bumb
`RENÉE MARIE BUMB
`United States District Judge
`
`20

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