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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
_________________________
No. 19-10770
_________________________
D.C. Docket No. 1:15-cv-04013-ELR
BLACK BOX ROYALTIES, INC.,
ALBERT MARIA-JANSEN,
Individually and as Representative of the Estate of
Arthur Lee Conley,
Plaintiffs-Appellants,
versus
UNIVERSAL MUSIC PUBLISHING, INC.,
UNIVERSAL MUSIC GROUP, INC., et al.
Defendants-Appellees.
_________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(December 16, 2020)
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Before GRANT and MARCUS, Circuit Judges, and AXON,* District Judge.
AXON, District Judge:
Black Box Royalties, Inc. (“Black Box”), and Albert Maria-Jansen filed this
breach of contract action against Universal Music Publishing, Inc., Universal Music
Group, Inc., UMG Recordings, Inc., Universal Music—MGB NA, LLC d/b/a
Universal Music—MGB Songs, and Rondor Music International, Inc., (together
“Universal”), claiming that Universal failed to pay Maria-Jansen royalties as
required by several publishing agreements. Finding that Black Box failed to present
any evidence of breach or damages, the district court granted summary judgment in
favor of Universal. Black Box and Maria-Jansen appealed, 1 and we affirm.
I. BACKGROUND
Between 1964 and 1970 Arthur Conley executed several publishing
agreements with East Publications, Inc., in exchange for royalty payments. Through
a series of corporate acquisitions, Universal now owns those agreements. Upon his
*
Honorable Annemarie C. Axon, United States District Judge for the Northern District of
Alabama, sitting by designation.
1
The district court held that Maria-Jansen did not have standing to sue because he assigned
his interest to Black Box. On appeal, Maria-Jansen does not challenge the district court’s finding
that he lacked standing. Thus, he has waived that argument. See United States v. Jernigan,
341
F.3d 1273, 1283 n.84 (11th Cir. 2003) (“Under our caselaw, a party seeking to raise a claim or
issue on appeal must plainly and prominently so indicate . . . . Otherwise, the issue . . . will be
considered abandoned.”). Because he lacked standing in the district court, he cannot challenge the
merits of the court’s summary judgment ruling on appeal. See Wolff v. Cash 4 Titles,
351 F.3d
1348, 1353–54 (11th Cir. 2003). Consequently, the Court’s description of the facts and arguments
will focus on Black Box alone.
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death, Conley left his royalty interests to his partner, Maria-Jansen. Suspecting that
Universal was not paying him all the royalties due on Conley’s music, Maria-Jansen
assigned his interest in the contracts to Black Box to recover potential outstanding
royalties from Universal.
II. PROCEDURAL HISTORY
Black Box and Maria-Jansen sued Universal for various claims, including
breach of contract. After dismissing all of the claims except for the breach of
contract claim, the court entered a scheduling order adopting the time limits set out
in the Federal Rules of Civil Procedure and the local rules of the Northern District
of Georgia. The Northern District of Georgia assigns cases to one of three discovery
tracks: (1) a zero-month discovery period; (2) a four-month discovery period; or (3)
an eight-month discovery period. In accordance with the local rules, the court
docketed the case under the four-month discovery track.
Four days before discovery ended, Black Box filed a motion requesting a
change to a scheduled deposition. In its motion, Black Box stated that the case was
assigned to an eight-month discovery track. The court denied the motion and pointed
out that the case was assigned to the four-month discovery track, making the
scheduled deposition untimely. However, the court permitted depositions to proceed
outside of the discovery period as previously scheduled.
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Black Box then filed a motion to reopen and extend discovery citing various
causes for delay and reminding the court that the parties had requested an extended
discovery period in their joint report and discovery plan at the beginning of case.
The court granted Black Box’s motion in part, allowing one additional month to
complete expert discovery but denying the request to reopen fact discovery. Black
Box filed a motion to reconsider, arguing that it reasonably believed that it had eight
months to conduct discovery and that the court’s decision to end discovery deprived
it of due process. The court denied Black Box’s motion, stating that it had already
rejected the argument about the reasonableness of Black Box’s belief and that Black
Box had “conducted no discovery in the four-month discovery period” and had still
not complied with discovery deadlines even after the extension for expert discovery.
Universal then moved for summary judgment. In response, Black Box filed
a motion to defer judgment and reopen discovery pursuant to Federal Rule of Civil
Procedure 56(d). The court denied Black Box’s motion, finding that Black Box
already had “an adequate opportunity” for discovery, and it granted summary
judgment in favor of Universal. First, the court found that Maria-Jansen did not have
standing to sue because he had assigned his interest to Black Box; second, the court
found that Black Box failed to produce twenty of the twenty-two contracts at issue2
2
There is some disagreement about whether twenty or twenty-two contracts were actually
at issue in this case. Throughout their briefing, both parties refer to twenty-two disputed contracts.
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and thus could not prove that Universal breached the terms of those contracts; and
third, the court found that Black Box failed to present evidence that Universal
breached the two contracts in the record. Black Box filed this appeal challenging
the district court’s summary judgment ruling and its denial of the Rule 56(d) motion.
III. STANDARD OF REVIEW
We review a district court’s denial of a Rule 56(d) motion for an abuse of
discretion. Harbert Int’l, Inc. v. James,
157 F.3d 1271, 1277 (11th Cir. 1998)
(discussing the predecessor to Rule 56(d)).
We review a district court’s grant of summary judgment de novo, applying
“the same legal standards that governed the district court.” Kroma Makeup EU,
LLC v. Boldface Licensing + Branding, Inc.,
920 F.3d 704, 707 (11th Cir. 2019).
Summary judgment is appropriate against “a party who fails . . . to establish the
existence of an element essential to that party’s case, and on which that party will
bear the burden of proof at trial.” Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986).
IV. DISCUSSION
This case is straightforward: Black Box had the burden to present evidence of
the essential elements of its claim, and it failed to do so. Black Box presented only
But as the district court noted, the complaint lists only twenty songs. Like the district court, this
Court will assume that twenty-two contracts are at issue. In any event, the number of royalty
agreements does not affect this Court’s analysis because the record contains evidence of only two
contracts.
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two of the disputed royalty agreements to the district court, and it did not point the
court to any specific instances of breach. Black Box claims that its failure to present
evidence of a breach should be excused because it “reasonably misunderstood” the
scheduling order. But the scheduling order was clear, and Black Box’s purported
misunderstanding of the scheduling order was not reasonable and does not excuse
its failure to conduct discovery or present evidence in opposition to summary
judgment. Thus, the district court properly denied Black Box’s Rule 56(d) motion
and correctly held that Black Box failed to carry its summary judgment burden of
production.
A. Black Box’s Rule 56(d) Motion
The district court’s denial of the Rule 56(d) motion impacts our summary
judgment analysis, so we discuss it first. Rule 56(d) permits a movant to “show[ ]
by affidavit or declaration that, for specified reasons, it cannot present facts essential
to justify its opposition” to a motion for summary judgment. Fed. R. Civ. P. 56(d).
The court may defer consideration of the motion, deny it, “allow time to obtain
affidavits or declarations or to take discovery,” or “issue any other appropriate
order.”
Id. The court’s decision is discretionary and depends in large part on
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whether the parties had “ample time and opportunity for discovery.” Barfield v.
Brierton,
883 F.2d 923, 932 (11th Cir. 1989).
The district court did not abuse its discretion by denying Black Box’s Rule
56(d) motion. Contrary to Black Box’s contention that it reasonably understood the
order to require an eight-month discovery period, the scheduling order clearly set a
four-month period: the order expressly adopted the time limit for discovery “set out
in . . . the Local Rules of this Court,” which call for a four-month discovery track for
contract cases like this one. N.D. Ga. L. R. 26.2(A) & App’x F. Plaintiffs’ counsel
knew the local rule because he indicated on the civil cover sheet that the case would
typically proceed under the four-month discovery track. The fact that Black Box (or
even Universal) may have asked for a longer period does not cloud the clarity of the
court’s scheduling order, especially in light of the court’s indication on the docket
sheet that the case was proceeding on the four-month discovery track.
Faced with a clear scheduling order that gave the parties four months to
complete discovery, Black Box did not propound a single discovery request upon
Universal. Even after the court later extended the expert discovery deadline, Black
Box still did not conduct any discovery. Black Box had “ample time and opportunity
for discovery.” Barfield,
883 F.2d at 932; see also Fla. Power & Light Co. v. Allis
Chalmers Corp.,
893 F.2d 1313, 1316 (11th Cir. 1990) (holding that the denial of a
Rule 56(d) motion was not an abuse of discretion where, among other things, the
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court had extended the discovery deadline already). Therefore, the district court did
not abuse its discretion by denying Black Box’s Rule 56(d) motion.
B. Universal’s Motion for Summary Judgment
Black Box claims that Universal breached twenty-two royalty agreements, but
it failed to present evidence from which a reasonable jury could find in its favor.
Under Georgia law, a party advancing a breach of contract claim must first present
the actual terms of the contract. Bazemore v. Jefferson Capital Sys., LLC,
827 F.3d
1325, 1330–31 (11th Cir. 2016); Key v. Naylor, Inc.,
602 S.E.2d 192, 195 (Ga. Ct.
App. 2004). Next, the plaintiff must show that the defendant breached the contract
terms, causing damage to the non-breaching party. SAWS at Seven Hills, LLC v.
Forestar Realty, Inc.,
805 S.E.2d 270, 274 (Ga. Ct. App. 2017).
Here, Black Box did not present evidence of the terms of twenty of the
disputed royalty agreements. Although it was Black Box’s burden to present
evidence of the terms of each contract, it produced only two of the royalty
agreements to the court. Without evidence of the terms of the twenty missing
contracts, a reasonable jury could not find that Universal breached those contracts.
Accordingly, the district court properly granted summary judgment in favor of
Universal on the breach of contract claim relating to the twenty missing contracts.
Black Box did, however, present two of the disputed contracts to the court for
consideration, thereby carrying its burden to present evidence of the terms of those
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contracts. Black Box advanced several theories of breach, but those theories all
suffered from the same deficiency: a failure to present any evidence from which a
reasonable jury could find that Universal did not comply with the contract terms.
For example, Black Box claims that Universal failed to pay the United States
statutory rate for royalties. But nothing in the contracts requires Universal to pay
the statutory rate. Similarly, Black Box claims that Universal failed to pay royalties
on certain exploitations of the songs governed by the royalty agreements but could
not point the court to any specific instance where Universal failed to do so.
On appeal, Black Box argues that the district court “gave up” and failed to
search the record for evidence that Universal did not pay Black Box what it was
owed. But there are limits to how much effort a district court must exert in searching
the record on a plaintiff’s behalf. See, e.g., Chavez v. Sec’y Fla. Dep’t of Corr.,
647
F.3d 1057, 1061 (11th Cir. 2011) (holding that “district court judges are not required
to ferret out delectable facts buried in a massive record”); Johnson v. City of Fort
Lauderdale,
126 F.3d 1372, 1373 (11th Cir. 1997) (“[W]e are not obligated to cull
the record ourselves in search of facts . . . .”). The district court correctly found that
it would be a waste of judicial resources to “scour the record” in search of specific
violations of the publishing agreements where Black Box had not pointed to any
such violations. The burden to produce and identify evidence of breach is on Black
Box, not on the court.
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For all twenty-two contracts at issue in this case, Black Box failed to meet its
evidentiary burden. Even construed in the light most favorable to Black Box
Royalties, the record contains no evidence from which a reasonable jury could find
that Universal breached any of the contracts. Thus, the district court properly
granted summary judgment in favor of Universal. We therefore affirm the district
court’s grant of Universal’s motion for summary judgment and denial of Black
Box’s Rule 56(d) motion.
AFFIRMED.
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