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Miller v. Hurst

United States District Court, M.D. Tennessee, Nashville Division

February 16, 2018

JACK VICTOR MILLER
v.
KENNETH HURST, et al.

          Honorable Aleta A. Trauger, District Judge.

          REPORT AND RECOMMENDATION

          BARBARA D. HOLMES UNITED STATES MAGISTRATE JUDGE.

         By Order entered July 11, 2017 (Docket Entry No. 6), the Court referred this pro se action to the Magistrate Judge for pretrial proceedings under 28 U.S.C. §§ 636(b)(1)(A)(and (B), Rule 72(b) of the Federal Rules of Civil Procedure, and the Local Rules of Court.

         Presently pending in this action are Plaintiff's “notice of removal and motion to join claims” (Docket Entry No. 35) and Defendants' Joint Motion to Remand or to Strike (Docket Entry No. 38). For the reasons set out below, the undersigned Magistrate Judge respectfully recommends that Plaintiff's motion be denied and Defendants' motion be granted.

         I. BACKGROUND

         Jack Victor Miller (“Plaintiff”), a resident of Readyville, Tennessee, filed this pro se action on May 3, 2017, against eight defendants - Kenneth Hurst (“Hurst”), Tedd Graves (“Tedd Graves”), Nita Miller Graves (“Nita Graves”), Russell Sims, Sims Records, Lovingood Publishing Company (“Lovingood”), English Music, and Lillibeth Music. Plaintiff seeks declaratory, injunctive, and monetary relief based upon allegations of copyright infringement of original musical works for three songs which he asserts he wrote or co-wrote, created, performed, and recorded: (1) “Ain't Comin' Home;” (2) “Burnin' Rubber (Over All My Burnin' Bridges);” and (3) “Cheater of the Year.” Defendants are alleged to be performers, writers, producers, publishers, record labels, and distributors who have infringed upon Plaintiff's legal rights to the musical works.

         Defendants Nita Graves, Tedd Graves, and Lovingood (hereinafter referred to collectively as “the Graves Defendants”) were served and have defended the lawsuit by filing a motion to dismiss. See Docket Entry No. 12. Defendants Hurst and Lillibeth Music (hereinafter referred to collectively as “the Hurst Defendants”) were served and have also defended the lawsuit by filing a motion to join the Graves Defendants' motion to dismiss or, alternatively, for summary judgment. See Docket Entry No. 21. Defendants Russell Sims, Sims Records, and English Music (hereinafter referred to collectively as “the Sims Defendants”) were served but have not had an appearance by counsel entered on their behalf.[1]

         The copyright lawsuit brought by Plaintiff does not exist in a vacuum, however, because Defendant Nita Graves also happens to be Plaintiff's sister, and the two siblings have been involved in litigation against each other since at least the 2014 death of their father, Jack Ronald (“J.R.”) Miller. The settlement of the estate of J.R. Miller occurred in the Probate Court for Rutherford County, Tennessee (“the Probate Case”). It is unclear whether any matters are still active in the Probate Case. In 2016, Nita Graves filed a civil action against Plaintiff in the Chancery Court for Rutherford County, Tennessee, Nita Graves v. Jack Victor Miller, No. 16-cv-1768 (“the Chancery Court Case”), bringing several claims against Plaintiff arising from an ongoing dispute over intellectual property that was part of the probate estate. Specifically at issue is who has the legal rights to the domain name “ProfessionalGambler.com” and a related website that had been used by J.R. Miller in his sports betting and handicapping business prior to his death. In the Chancery Court Case, Nita Graves contends that she has the legal rights to this property and that Plaintiff has surreptitiously and wrongfully taken actions to infringe upon these rights and to attempt to gain control of the property. The Chancery Court Case is being actively litigated with the parties having engaged in discovery and the filing of dispositive motions.[2]

         II. PROCEDURAL BACKGROUND

         Against this backdrop, Plaintiff filed his copyright infringement lawsuit. Both the Graves and the Hurst Defendants (hereinafter referred to collectively as “the Defendants”) responded to the lawsuit by filing dispositive motions seeking dismissal of the lawsuit because Plaintiff failed to allege that he had registered copyrights for the works at the time he filed his lawsuit. By a contemporaneously entered Order, the Court granted Plaintiff's motions to amend and supplement his complaint to: (1) add allegations that he has both applied for and received at least one certificate of registration for his works; (2) add an additional claim for conspiracy to convert and (3) add new allegations and claims directed at Nita Graves that are based upon facts arising from the dispute over the domain name “ProfessionalGambler.com” and the related website. The Court denied without prejudice Defendants' motions to dismiss in light of the new amended pleadings. The Court also denied, for lack of any supporting factual allegations, Plaintiff's request to “join” a new copyright claim based on Defendant Nita Graves alleged infringement of “Plaintiff's Collection of Articles on Sports Betting at ProfessionalGambler.com, in violation of the Copyright Act.” See Docket Entry No. 34.

         In addition to the above matter, Plaintiff has filed a “notice of removal and motion to join claims.” See Docket Entry No. 35. By this filing, Plaintiff seeks to remove the Chancery Court Case to this Court pursuant to 28 U.S.C. §§ 1441, 1446, and 1454, and add all the claims brought by Nita Graves in the Chancery Court Case to the instant lawsuit. Id. Essentially, Plaintiff contends that the state law claims brought by Nita Graves in the Chancery Court Case, which concern the domain name and related website for “ProfessionalGambler.com, ” can be removed to this Court and made a part of the instant case because (1) through his “motion to join claim” he is asserting a copyright claim concerning an article on the website related to the domain name “ProfessionalGambler.com, ” (2) over which the Court has original jurisdiction over copyright claims, and (3) the Court has supplemental jurisdiction over Nita Graves' state court claims under 28 U.S.C. § 1367 because those claims share a common nucleus of facts with the new copyright claim he seeks to add to the instant lawsuit and with the other new claims he seeks to bring against her in his proposed amended complaint. Id. at 1-2.

         With respect to Plaintiff's attempt to remove the Chancery Court Case to this Court and make it a part of the instant lawsuit, Defendants have filed a motion to strike Plaintiff's filing or, alternatively, to remand the Chancery Court Case to the extent that the Court finds that Plaintiff has actually removed the case. See Joint Motion to Strike or Remand (Docket Entry No. 38). Defendants argue that removal is procedurally improper because: 1) Plaintiff cannot “remove” claims in a state court case to an already existing federal case through the mechanism of removal under 28 U.S.C. § 1441; and 2) Plaintiff failed to promptly act to remove the Chancery Court Case within 30 days of being served with the state court pleading that sets forth the claim supporting removal. See Memorandum in Support (Docket Entry No. 39) at 3-4. Defendants further argue that Plaintiff waived any right he had to remove the Chancery Court Case because he filed a motion for summary judgment on the merits of the state law claims in the Chancery Court Case. Id. at 5. Finally, Defendants point out that Plaintiff does not base removal on the fact that this Court has original jurisdiction over any of the claims brought by Nita Graves in the Chancery Court Case but, instead, seeks removal because Nita Graves' state court claims share underlying facts with the new copyright claim that he seeks to add as a claim in the instant lawsuit. Id. at 4. Defendants also seek an award of attorneys' fees because of expenses they incurred as a result of Plaintiff's defective removal. See Docket Entry No. 38.

         Plaintiff has expounded on his arguments for removal in an additional filing. See Docket Entry No. 43.

         III. ...


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