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Ronaldo Designer Jewelry, Inc. v. Cox

United States District Court, N.D. Mississippi, Aberdeen Division

September 5, 2017

RONALDO DESIGNER JEWELRY, INC. PLAINTIFF
v.
JAMES B. COX and CATHERINE A. COX d/b/a JC DESIGNS d/b/a WIRE N RINGS and JOHN DOE a/k/a LEROY and JOHN DOES Numbers 1 through 99 DEFENDANTS

          ORDER DENYING INJUNCTIVE RELIEF

          DEBRA M. BROWN UNITED STATES DISTRICT JUDGE

         Before the Court is Ronaldo Designer Jewelry Inc.'s “Renewed Motion for Temporary Restraining Order, ” Doc. #11, which has been converted to a motion for a preliminary injunction pursuant to the parties' agreement.

         I

         Procedural History

         A. Original Complaint, TRO Motion, and Related Filings

         On January 3, 2017, Ronaldo filed a verified complaint against James B. Cox and Catherine A. Cox d/b/a JC Designs d/b/a Wire N Rings; John Doe a/k/a Leroy; and John Does Numbers 1 through 99, alleging copyright infringement, trade dress infringement, and common law unfair competition and unfair trade practices. Doc. #1. Nine days later, Ronaldo filed a motion seeking a temporary restraining order against the defendants. Doc. #4. On January 19, 2017, the Court denied the motion for a temporary restraining order because Ronaldo failed to comply with Federal Rule of Civil Procedure 65's requirements for the issuance of a temporary restraining order without notice. Doc. #10. Six days later, Ronaldo renewed its motion for a temporary restraining order. Doc. # 11. The Court set a telephonic status conference for February 9, 2017.[1] Doc. #16.

         Before the scheduled conference, on February 7, 2017, the Coxes filed identical motions to dismiss the verified complaint for failure to state a claim or, alternatively, lack of venue and personal jurisdiction. Doc. #25; Doc. #27.[2] The motions were supported by a separately-filed memorandum. Doc. #26. That same day, the Coxes also filed a three-page response to Ronaldo's renewed motion. Doc. #28.

         Following the status conference on February 9, the Court set a schedule for discovery and briefing on the preliminary issues of personal jurisdiction and venue. Doc. #31. On February 22, 2017, after being advised that the defendants conceded the propriety of personal jurisdiction and venue, the Court issued an order setting a briefing schedule for the renewed motion for a temporary restraining order, which the parties agreed should be converted to a motion for preliminary injunction. Doc. #41. The order also set a briefing schedule for the Coxes to refile their motions to dismiss “to indicate their concessions on the record ....” The Coxes refiled an amended motion to dismiss and accompanying memorandum the next day. Doc. #48; Doc. #49. Also that day, the Court noticed for April 12, 2017, an evidentiary hearing on the motion for preliminary injunction. Doc. #47.

         B. First Amended Complaint and Related Filings

         On March 3, 2017, Ronaldo filed an unopposed motion to amend its complaint. Doc. #51. Three days later, the Coxes filed an unopposed motion for leave to amend their motion to dismiss. Doc. #53. On March 7, 2017, United States Magistrate Judge David A. Sanders granted Ronaldo's motion to amend. Doc. #54. A “Notice of Withdrawal of Pending Motion to Dismiss filed by Defendants James B. Cox and Catherine A. Cox” was filed the same day, in which the Coxes withdrew all prior motions to dismiss as well as the motion for leave to amend their motion to dismiss. Doc. #57.

         Ronaldo filed the amended complaint on March 9, 2017. Doc. #58. The Coxes moved to dismiss the amended complaint on March 23, 2017. Doc. #60. Ronaldo responded to the motion to dismiss on April 6, 2017. Doc. #62.

         C. Evidentiary Hearing, Second Amended Complaint, and Related Filings

          On April 6, 2017, six days before the scheduled preliminary injunction hearing, Ronaldo filed (1) a motion for leave to file a second amended complaint, Doc. #63; and (2) a motion to continue the preliminary injunction hearing until an unknown date, Doc. #64. The Coxes filed a response on April 10, 2017, opposing continuance. Doc. #66. After convening a status conference on the issue of continuance, the Court denied Ronaldo's motion to continue. Doc. #70.

         The evidentiary hearing on the motion for preliminary injunction commenced April 12-13, 2017, and was continued until May 1, 2017.[3] On April 24, 2017, Ronaldo filed a notice withdrawing its April 6 motion for leave to file a second amended complaint. Doc. #74. The same day, Ronaldo filed a new unopposed motion for leave to file a second amended complaint to revise the proposed second amended complaint initially submitted. Doc. #75. The proposed amended complaint withdrew Ronaldo's claims for copyright infringement with regard to “The Love Knot” bracelet and the “Name This Bracelet” (now known as “The Hero Bracelet”) and added a copyright infringement claim based on Ronaldo's “The Power of Prayer Bracelet.” Id. On April 27, 2017, the Court issued an order granting Ronaldo's second motion for leave to file a second amended complaint, and denying as moot all of the Coxes' prior motions to dismiss as well as Ronaldo's April 6 motion for leave. Doc. #81.

         On April 28, 2017, Ronaldo filed its second amended complaint, Doc. #82; along with a “Notice of Withdrawal of Certain Claims for Pending Preliminary Injunction, ” Doc. #83. The notice states:

Ronaldo's claims for trade dress infringement and unfair competition, under both the Lanham Act and common law, remain pending in this matter and are applicable to all infringing works using Ronaldo's “Kissing Roof” clasp trade dress, including but not limited to those works which use the trade dress -- even though claims for copyright infringement with respect thereto are now withdrawn. Ronaldo's claims for copyright infringement with regard to its “The Angelina Bracelet” and “The Power of Prayer Bracelet” Works also remain pending. Ronaldo's copyright infringement claim with regard to “The Power of Prayer Bracelet” Work is not currently subject to the preliminary injunction hearing.

Id.

         The preliminary injunction hearing resumed and concluded on May 1, 2017, with oral arguments on the motion.

         On May 12, 2017, the Coxes filed an answer and a counterclaim. Doc. #87. On June 16, 2017, Ronaldo filed a motion to dismiss the Coxes' counterclaim. Doc. #92. The Coxes responded to Ronaldo's motion to dismiss on June 29, 2017, Doc. #95; and Ronaldo replied on July 6, 2017, Doc. #96.[4]

         II

         Evidentiary Matters

         At the conclusion of the evidentiary hearing, the Court took under advisement objections to the admission of two exhibits: P-20 and P-23. In resolving these objections, the Court notes that “[t]he law is well-settled that because the procedures governing a preliminary injunction are generally less formal than those at trial, the court may rely upon otherwise inadmissible evidence when considering a preliminary injunction.” ADT, LLC v. Capital Connect, Inc., 145 F.Supp.3d 671, 682 (N.D. Tex. 2015) (citations omitted).

         A. P-20

         At the evidentiary hearing, the Coxes objected to the admission of P-20 on the grounds of lack of authentication and foundation. A foundation objection generally refers to a proponent's ability to satisfy specific requirements for an exhibit's admission into evidence, such as authentication, best evidence, or an exception to the hearsay rule. 1 McCormick on Evidence § 51 (7th ed.); see, e.g., United States v. Barnes, 803 F.3d 209, 217 (5th Cir. 2015) (foundation requirement for Facebook and text messages satisfied by authentication). Of relevance here, Rule 901(a) of the Federal Rules of Evidence provides that “[t]o satisfy the requirement of authenticating ... an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims ….” Fed.R.Evid. 901(a).

         P-20 is purportedly a page of photographs from a book authored by Linda Chandler. While there is no express testimony linking P-20 to the book, Dale Armstrong, a witness called by the Coxes, testified that she recognized Chandler's book and then testified from the book while the exhibit was placed on the ELMO system in the courtroom. Although this is not ideal authentication testimony, the Court deems it sufficient under the informal rules of admission for preliminary injunction hearings. Accordingly, the objection to P-20 is overruled and P-20 is admitted.

         B. P-23

         The Coxes also objected to P-23, a “new releases page” from a recent Ronaldo catalog showing a Ronaldo Forget Me Not bracelet. The Coxes objected on the grounds that P-23, which was introduced during the redirect examination of Ronaldo employee Laura Lynette Johnson Wimberly, was a “brand new exhibit and document” and was “beyond the scope of cross.” Later, counsel for the Coxes offered the following less-than-clear soliloquy on the admissibility of the exhibit:

Object to P 23 as unnecessarily confusing, beyond the course of cross-examination and presents an image not crossed on. I mean, it is - there is no foundation - I don't know how to make the objection, Your Honor. I apologize. Other than this isn't the same bracelet [the witness] was asked to look at and simply given another opportunity to do another version of it.

         The scope of redirect, including the introduction of exhibits, is “committed to the district court judge's discretion.” United States v. Rodriguez, 866 F.2d 390, 394 (11th Cir. 1989). Where an exhibit falls within the proper scope of redirect, admission is proper. Id. Generally, the scope of redirect cannot exceed the scope of cross examination. United States v. Reed, 277 F. App'x 357, 362 (5th Cir. 2008).

         During cross examination, Wimberly was questioned about the clasp on a Forget Me Not bracelet. The questioning involved the use of a photograph which Wimberly found “really difficult to see.” On redirect, Ronaldo introduced P-23 to “show a better picture that shows the clasp.” Insofar as questioning on cross examination related to the clasp on the Forget Me Not bracelet, introduction of P-23 for the purpose of showing the clasp was within the scope of cross and was, therefore, properly introduced on redirect. As to the Coxes remaining objections, the Court notes that Wimberly identified P-23 as coming from the catalog so as to lay a proper foundation, that the picture is in no way confusing, and that the Coxes offered no authority (such as a governing pretrial order) which would prevent introduction of a new exhibit. Accordingly, the Coxes' objections to P-23 are overruled and P-23 is admitted.

         III

         Factual Background

         A. Ronnie Needham ...


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