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SCO's Cases in SCO v. Novell -- Johnson v. Tuff-N-Rumble
Saturday, October 16 2004 @ 10:59 PM EDT

In the previous article, SCO's Memorandum in Opposition to Novell's Motion to Dismiss [Docket #52] listed a table of authorities at the end of the document.

I thought you might like to read the cases SCO is relying on. So here is the first one, Johnson v. Tuff-N-Rumble Management. It was appealed to the US Court of Appeals for the 5th Circuit (48 Fed. Appx. 917), which affirmed on September 18, 2002. I have removed elements you likely don't care about, like who the lawyers were, and internal case documents you don't have to refer to anyway, just for simplicity.


Joseph Johnson, et al. v. Tuff-N-Rumble Management, Inc., et al.

Civil Action 99-1374-R
OPINION: Sarah S. Vance, US District Judge

Before the Court is the motion of defendants, Boutit, Inc. d/b/a No Limit Records and Vyshonn Miller p/k/a Silkk the Shocker, for a separate trial of the claims asserted against them pursuant to Federal Rule of Civil Procedure 42(b).


This is a copyright infringement action. Plaintiffs have sued Tuff-n-Rumble Management, Inc. d/b/a Tuff City Records, Joe Jones d/b/a Melder Publishing Co., Boutit, Inc. d/b/a No Limit Records, No Limit of New Orleans, L.L.C., Vyshonn Miller p/k/a Silkk the Shocker, and Big P Music, L.L.C. for allegedly infringing their rights to the song It Ain't My Fault. Tuff City has also asserted cross-claims of copyright infringement against Jones, No Limit Records, No Limit of New Orleans, Big P Music, and Shocker.

Tuff-n-Rumble and Jones defend plaintiffs' claims by arguing that Johnson and/or Quezergue assigned a percentage of their interest in the song to them by written agreement. . . . None of the other defendants have asserted the affirmative defense of copyright ownership. On February 15, 2000, plaintiffs filed a motion for summary judgment against Jones on the grounds that no genuine issue of fact exists as to whether Jones owns a copyright interest in It Ain't My Fault. The Court granted plaintiffs' motion, finding that Jones failed to produce a valid written assignment as required to establish his ownership under federal copyright law. The Court therefore declared as a matter of law that Jones does not own a copyright interest in the song.

On April 27, 2000, No Limit Records and its recording artist Shocker moved the Court to order a separate trial of the claims asserted against them pursuant to Rule 42(b). No Limit Records and Shocker assert that separate trials of the copyright ownership and infringement issues would promote judicial economy and efficiency. Plaintiffs oppose the motion.


A district court has the sole discretion to grant separate trials. See Conkling v. Turner, 18 F.3d 1285, 1293 (5th Cir. 1994) (quoting First Tex. Sav. Ass'n v. Reliance Ins. Co., 950 F.2d 1171, 1174 n. 2 (5th Cir. 1992)); Laitram Corp. v. Hewlett-Packard Co., 791 F. Supp. 113, 114 (E.D. La. 1992). Pursuant to Rule 42(b) of the Federal Rules of Civil Procedure, the district judge may order a separate trial of any claim or issue when such an order would further convenience, avoid prejudice, or promote judicial economy or expedition. See FED. R. CIV. P. 42(b). Separate trials should nevertheless be the exception, not the rule. See Laitram, 791 F. Supp. at 114-15 (ultimately courts should not order separate trials "unless such a disposition is clearly necessary") (citation omitted). In fact, the Fifth Circuit has established an important limitation on when a district court may order separate trials. See McDaniel v. Anheuser-Busch, Inc., 987 F.2d 298, 305 (5th Cir. 1993) (citations omitted). A court should not bifurcate claims unless the issue to be tried separately is "so distinct and separable from the others that a trial of it alone may be had without injustice." See id. (quoting Swofford v. B & W, Inc., 336 F.2d 406, 415 (5th Cir. 1964). Essentially, courts must consider the justifications for bifurcation in relation to the facts of the individual case, giving particular consideration to the avoidance of prejudice, in order to determine if a separate trial is appropriate. See Laitram, 791 F. Supp. at 115 (court expected to exercise its discretion under Rule 42 on a case-by-case basis).

Here, No Limit Records and Shocker argue that separate trials of the copyright ownership and infringement issues will promote judicial efficiency and economy. Their argument for separate trials revolves primarily around the costs associated with retaining expert witnesses in this case. Specifically, No Limit Records and Shocker contend that the resolution of the copyright ownership issue will likely not involve expert testimony, while the infringement issue will. Unless the Court orders separate trials, they assert that they will have to incur the expense and time of deposing and defending against each of the alleged copyright owner's expert witnesses "when in fact there can only be one legitimate copyright owner."

The Court is not persuaded by the arguments of No Limit Records and Shocker in favor of bifurcation. Although the disposition of plaintiffs' copyright infringement claim depends on the ownership issue, separate trials would not further the interests of judicial efficiency, convenience and fairness. Notably, No Limit Records and Shocker filed their motion to bifurcate before the Court declared that Jones does not own an interest in the copyright at issue. The copyright ownership dispute therefore centers around only two claimants, plaintiffs and Tuff City. Further, as plaintiffs observe, No Limit Records and Shocker incorrectly state that there can only be one legitimate copyright owner. Tuff City does not claim a 100% ownership interest in the copyright to It Ain't My Fault. Rather, it claims to own between 30% and 37.5% of each of Johnson and Quezergue's 50% interest in the song. It is thus possible that the Court will find that plaintiffs and Tuff City both own divisible portions of the copyright. In that case, No Limit Records and Shocker will not be able to avoid defending against two expert witnesses during the infringement phase of the trial.

The uncertainty that No Limit Records and Shocker might obtain some economy in the cost of discovery if separate trials were ordered does not outweigh the prejudice to plaintiffs from the considerable delay that will result if the Court orders separate trials and separate discovery periods. See Laitram, 791 F. Supp. at 116 ("An unreasonable delay in a case's resolution amounts to prejudice to the one opposing separation."); accord Guedry v. Marino, 164 F.R.D. 181 (E.D. La. 1995). Further, plaintiffs have expressed concern that any trial delay may prejudice their ability to recover from No Limit Records in the event the record label is found guilty of copyright infringement. After balancing the parties' competing claims of prejudice, considering the convenience to the Court and the litigants, and assessing the interests of judicial economy and efficiency, the Court finds that these considerations weigh against the motion for separate trials under Rule 42(b).


For the foregoing reasons, the Court DENIES the motion of No Limit Records and Shocker for separate trials.

New Orleans, Louisiana, this 25th day of May, 2000.



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