Filed: Aug. 31, 2012
Latest Update: Feb. 12, 2020
Summary: Case: 11-20290 Document: 00511972868 Page: 1 Date Filed: 08/31/2012 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED August 31, 2012 No. 11-20290 Lyle W. Cayce Clerk MICHAEL BAISDEN, Plaintiff–Appellant Cross–Appellee v. I’M READY PRODUCTIONS, INC.; IMAGE ENTERTAINMENT, INC.; A.L.W. ENTERTAINMENT INC.; GARY SHERRELL GUIDRY; JE’CARYOUS FRANKNEQUE JOHNSON, Defendants–Appellees Cross–Appellants Appeals from the United States District Cou
Summary: Case: 11-20290 Document: 00511972868 Page: 1 Date Filed: 08/31/2012 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED August 31, 2012 No. 11-20290 Lyle W. Cayce Clerk MICHAEL BAISDEN, Plaintiff–Appellant Cross–Appellee v. I’M READY PRODUCTIONS, INC.; IMAGE ENTERTAINMENT, INC.; A.L.W. ENTERTAINMENT INC.; GARY SHERRELL GUIDRY; JE’CARYOUS FRANKNEQUE JOHNSON, Defendants–Appellees Cross–Appellants Appeals from the United States District Cour..
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Case: 11-20290 Document: 00511972868 Page: 1 Date Filed: 08/31/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 31, 2012
No. 11-20290 Lyle W. Cayce
Clerk
MICHAEL BAISDEN,
Plaintiff–Appellant Cross–Appellee
v.
I’M READY PRODUCTIONS, INC.; IMAGE ENTERTAINMENT, INC.;
A.L.W. ENTERTAINMENT INC.; GARY SHERRELL GUIDRY;
JE’CARYOUS FRANKNEQUE JOHNSON,
Defendants–Appellees Cross–Appellants
Appeals from the United States District Court for the
Southern District of Texas
Before KING, PRADO, and HAYNES, Circuit Judges.
KING, Circuit Judge:
Plaintiff-Appellant Michael Baisden appeals an adverse judgment in his
suit against various defendants for copyright infringement, breach of contract,
and tortious interference. Defendants-Appellees I’m Ready Productions, Inc.,
Image Entertainment, Inc., A.L.W. Entertainment Inc., Gary Sherrell Guidry,
and Je’caryous Frankneque Johnson cross-appeal the denial of attorneys’ fees.
For the following reasons, we AFFIRM the judgment of the district court in all
respects.
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No. 11-20290
I. FACTUAL AND PROCEDURAL BACKGROUND1
Michael Baisden is the host of a nationally syndicated radio show and the
author of several books. Gary Guidry and Je’Caryous Johnson are the co-
founders of I’m Ready Productions, Inc. (“IRP”), a theatrical production company.
In early 2001 Baisden entered into discussions with Johnson and Guidry to
adapt one of his novels, Men Cry in the Dark, into a stage play.2 The parties
entered into an agreement on March 9, 2001 (the “2001 Men Cry Agreement”)
whereby IRP agreed to create an original screenplay based on the novel Men Cry
in the Dark.
The 2001 Men Cry Agreement included two provisions relating to
ownership rights. First, the agreement provided that the author, IRP, would
“retain copyrights to the STAGEPLAY, as copyright is limited to the play script
created by [IRP].” Second, Baisden also “agree[d] that all interest in any
creative production, staging, design, or writing aspects of the PLAY are exclusive
property of [IRP].” The agreement also provided that IRP would own exclusive
merchandising rights from, but not limited to, clothing, posters, programs, mugs,
CDs, or tapes. Baisden would receive a 40% share of net profits from all such
merchandising sales connected with the live performance of the stage play, but
not including profits from novels written by him and sold at such performances.
Baisden also agreed to compensate IRP with a 40% share of net profits from all
novels, videos, or other works created by him in connection with the live
performance of the stage play. Finally, royalties or other proceeds generated as
a result of future agreements with third parties relating to the stage play or its
1
Because Baisden challenges the sufficiency of the evidence supporting the jury’s
verdict, this court accepts the facts in the light most favorable to the prevailing party. Snyder
v. Trepagnier, 142 F.3d 791, 795 (5th Cir. 1998).
2
Men Cry in the Dark is described as “an urban perspective of how four men relate to
the unique women in their lives” while confronting issues such as “racism in corporate
America, fidelity vs. casual sex, and the bonds of friendship.”
2
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production would be split evenly. The 2001 Men Cry Agreement was to last
three years, but could be extended for the life of any future third-party
merchandise agreement associated with the stage play.
IRP adapted Baisden’s novel into a stage play (“Men Cry”). IRP then took
Men Cry on a national tour beginning in January of 2002. During the tour,
Baisden sold a number of different products at the shows, including three books
and two videos on relationships. IRP, for its part, sold programs and t-shirts. In
the spring of 2002, Baisden and IRP agreed to orally modify the merchandising
provisions in the 2001 Men Cry Agreement to reflect that each party would keep
100% of the profits from its own products.
In July of 2002 the parties entered into a second contract to adapt another
of Baisden’s novels, The Maintenance Man, into a stage play (the “2002
Maintenance Man Agreement”).3 This agreement contained provisions
substantially identical to those in the original 2001 Men Cry Agreement. As
before, IRP produced a stage play (“Maintenance Man”). But prior to taking that
production on tour, the parties modified the agreement in December of 2002 to
compensate IRP $300,000 in the event Baisden conveyed motion picture rights
in The Maintenance Man to a motion picture company and gave it the right to
make full use of the IRP-created screenplay.
Around the same time, in September of 2002, IRP filmed a live production
of Men Cry and Maintenance Man and sold copies of those recordings in video
and DVD format through A.J. Productions. Baisden learned of these recordings,
at the latest, in April of 2003 when he ordered 500 copies of the Men Cry
recording.4 Baisden handed out between sixty and seventy copies of the
3
The Maintenance Man follows the lives of four primary characters, but focuses on
Malcolm Tremell, “a high-priced gigolo who . . . finally meets the woman of his dreams.”
4
Baisden disputes that he ordered the DVDs. However, evidence adduced at trial
shows that his employee, Yvonne Gilliam, ordered the recordings on his behalf, shipped them
3
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recording at a promotional event at which he provided one to every person who
purchased a copy of his Men Cry in the Dark novel. Baisden’s website also sold
the DVD for a time, and, eventually, listed it as “sold out.”
In the Summer of 2005, Baisden asked IRP to retour Men Cry. The parties
orally agreed that the second tour would be governed by the same terms as the
2001 Men Cry Agreement, except that Baisden would be entitled to 3% royalties
from gross revenues of seats sold per show (the “2005 Men Cry Agreement”).
Baisden appeared at some of these shows and autographed copies of the Men Cry
and Maintenance Man DVDs. The second Men Cry tour concluded on November
20, 2005. Pursuant to their agreement, IRP sent Baisden a check for $44,145,
which he cashed on December 29, 2005.
On November 15, 2005, a few days before the second Men Cry tour ended,
IRP entered into a contract with Image Entertainment (“Image”) to distribute
DVDs of both plays. In January of 2007, Baisden remarked on the poor timing
of the DVDs, and that he did not like the look of the video. The DVD was
released on February 7, 2007. On May 4, 2007, Baisden sent IRP a cease and
desist letter alleging that IRP was infringing his copyrights. On June 14, 2007,
an entity known as the Farcor Baisden Partnership, L.L.C.—of which Baisden
was presumably a part—entered into an option contract with Behave
Productions, Inc., to turn The Maintenance Man into a movie. As part of that
contract, Baisden agreed to use his best efforts to cause IRP to “cease
distribution of the unauthorized picture.”
Baisden filed suit on February 7, 2008, alleging that IRP, Image, A.L.W.
Entertainment Inc., Guidry, and Johnson (collectively, “Defendants”) infringed
his copyright in The Maintenance Man and breached the 2002 Maintenance Man
Agreement by failing to compensate him for DVD sales. Baisden added similar
to his address, and billed them to his account.
4
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No. 11-20290
claims with respect to the Men Cry DVD in November of 2008. Defendants then
moved for summary judgment. On recommendation by a magistrate judge, the
district judge granted Defendants’ motion with respect to Baisden’s claim for
tortious interference, as well as those parts of his copyright infringement and
breach of contract claims that fell outside the statutory limitations period.
The remaining claims proceeded to a nine-day jury trial. The jury
returned a 33-question special verdict in Defendants’ favor.5 Baisden moved for
judgment as a matter of law or, alternatively, a new trial, which the district
court denied. The district court then entered a final take-nothing judgment as
to all parties. The court also entered a number of declarations clarifying the
parties’ rights. Finally, the court denied Defendants’ request for attorneys’ fees.
Baisden appealed the judgment, and Defendants cross-appealed the denial of
attorneys’ fees.
II. DISCUSSION
Baisden raises numerous issues on appeal. These require us to address,
first, whether Defendants infringed Baisden’s copyrights; second, whether the
district court’s declarations improperly expanded IRP’s copyrights; third,
whether the district court erred in denying Baisden’s motion for a new trial;
fourth, whether the district court erred in granting summary judgment against
Baisden’s tortious interference claim; and, fifth, whether the district court erred
in denying Defendants’ request for attorneys’ fees.
A. Standard of Review
A district court must deny a motion for judgment as a matter of law
“unless the facts and inferences point ‘so strongly and overwhelmingly in the
movant’s favor that reasonable jurors could not reach a contrary conclusion.’”
Flowers v. S. Reg’l Physician Servs. Inc., 247 F.3d 229, 235 (5th Cir. 2001)
5
The jury did not find in IRP’s favor on its counterclaims. These claims have not been
appealed.
5
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(citation omitted). Although we review de novo the denial of a motion for
judgment as a matter of law, we apply the same legal standard as the district
court. Id. We will consider all of the evidence, drawing all reasonable inferences
and resolving all credibility determinations in the light most favorable to the
non-moving party. Navigant Consulting, Inc. v. Wilkinson,
508 F.3d 277, 282
(5th Cir. 2007). “[O]ur standard of review with respect to a jury verdict is
especially deferential.” SMI Owen Steel Co., Inc. v. Marsh USA, Inc.,
520 F.3d
432, 437 (5th Cir. 2008). This court “cannot reverse a denial of a motion for
judgment as a matter of law unless the jury’s factual findings are not supported
by substantial evidence, or if the legal conclusions implied from the jury’s verdict
cannot in law be supported by those findings.” Am. Home Assurance Co. v.
United Space Alliance, LLC,
378 F.3d 482, 488 (5th Cir. 2004).
B. Copyright Infringement
Baisden presents a host of arguments in support of his copyright
infringement claim. These include that the oral agreement allegedly made in
2005 was not a work-for-hire agreement and was thus invalid, was contrary to
the parties’ intentions, had to be in writing pursuant to 17 U.S.C. § 204(a), and
was in violation of the statute of frauds. Defendants respond that they had
exclusive or implied licenses to distribute DVDs of both stage productions.
To prove copyright infringement a party must show that “(1) he owns a
valid copyright and (2) the defendant copied constituent elements of the
plaintiff’s work that are original.” Positive Black Talk Inc. v. Cash Money
Records, Inc., 394 F.3d 357, 367 (5th Cir. 2004), abrogated on other grounds by
Reed Elsevier, Inc. v. Muchnick,
130 S. Ct. 1237 (2010). The second element is
met where a plaintiff proves “(1) factual copying and (2) substantial similarity.”
Id. But regardless of whether a plaintiff can meet these elements, “the existence
of a license authorizing the use of copyrighted material is an affirmative defense
to an allegation of infringement.” Carson v. Dynegy, Inc.,
344 F.3d 446, 451 n.5
6
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(5th Cir. 2003). Such a license may be either exclusive or non-exclusive; if
exclusive, it must be in writing. See id. Throughout, the burden remains on the
defendant to prove the existence of a license.
Id.
Here, two works based on two separate novels are at issue. Accordingly,
this court separately considers whether Defendants have demonstrated the
existence of a license as to each of them. Because we agree that the facts of this
case support the creation of an exclusive license as to the first, and an implied
nonexclusive license as to the second, we affirm the jury’s verdict that
Defendants did not infringe Baisden’s copyrights.6
1. 2002 Maintenance Man Agreement
The parties’ 2002 Maintenance Man Agreement granted Defendants a
license to distribute DVDs of the plays.7 The agreements could be extended if
IRP entered into a merchandising deal with a third party during the 2002
Maintenance Man Agreement’s three-year duration. Such an agreement would
extend the duration of the merchandising provision for the life of that
agreement.
At trial, the jury concluded that the parties had executed a revision of the
2002 Maintenance Man Agreement in December of 2002. The jury further found
that IRP and Image had entered into a licensing agreement for distribution of
Maintenance Man video recordings at some point prior to the expiration of that
agreement. Baisden has not challenged these findings. Accordingly, we will not
6
Having found that the jury’s verdict can be upheld on the basis of an implied
nonexclusive license, this court does not reach the question of whether the screenplays were
substantially similar to the novels.
7
The agreement includes broad language that “merchandise” includes, but is not
limited to, “clothing, posters, programs, mugs, CDs or tapes.” Given the expansive language
of the provision, this court has no difficulty in finding that DVDs are sufficiently analogous
to “CDs or tapes” to be included in the agreements.
7
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No. 11-20290
overturn the jury’s verdict that Defendants did not infringe Baisden’s copyright
as to this work. Am. Home Assurance Co., 378 F.3d at 488-89.
2. 2005 Men Cry Agreement
Defendants were contractually entitled to distribute copies of the Men Cry
DVDs for the three-year duration of the 2001 Men Cry Agreement. This meant
that if Defendants wished to extend the life of this arrangement they had until
approximately March 2005 to negotiate an extension or finalize a merchandise
agreement with a third party. The 2001 Men Cry Agreement would then be
extended for the life of that third-party contract. IRP, however, did not enter
into such an agreement with Image until November 15, 2005, several months
after the three-year period had expired.
The jury nonetheless found that Defendants had not infringed Baisden’s
copyright. Instead, it found that IRP and Baisden entered into an oral
agreement in 2005 renewing or extending the 2001 Men Cry Agreement. It is
this finding that is, in Baisden’s words, the “fulcrum of this appeal.”
According to Baisden, it was improper for the district court to submit the
question of oral modification or agreement to the jury. He advances a number
of arguments in support. His primary focus is 17 U.S.C. § 204(a), which provides
that “[a] transfer of copyright ownership . . . is not valid unless an instrument
of conveyance, or a note or memorandum of the transfer, is in writing and signed
by the owner of the rights conveyed.” Baisden contends that Defendants can
point to no written instrument which conveyed his copyrights to IRP. We agree.
The only writing IRP presents is a royalty check for the second Men Cry
tour. That check merely states that it was for “Men Cry in the Dark Fall 2005
Royalties (Paid in Full).” The check does not expressly refer to an assignment
of copyrights. See Playboy Enters., Inc. v. Dumas, 53 F.3d 549, 564 (2d Cir.
1995) (applying clearly erroneous standard and deferring to district court’s
determination that check for past “assignment . . . of all rights, title and
8
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interest” was insufficient to transfer copyrights). Nor is there any other writing
that would support the check’s transfer of copyrights. See Johnson v. Tuff-n-
Rumble Mgmt., Inc., No. 99-1374, 2000 WL 1145748, at *6 (E.D. La. Aug. 14,
2000) (holding § 204(a)’s writing requirement satisfied by check stating
“assignment of [plaintiff’s] copyrights to [defendant] agreement dated June 17,
1997,” where there was also an unsigned contract referring to check). We thus
agree that IRP cannot show that the royalties check was a transfer of copyright.
But although this precludes Defendants from proving the existence of an
exclusive license, it remains possible that IRP held an implied nonexclusive
license.
Consent for an implied license may take the form of permission or lack of
objection. Lulirama Ltd., Inc. v. Axcess Broad. Servs., Inc., 128 F.3d 872, 879
(5th Cir. 1997) (“Lulirama”). During the 2005 Men Cry Tour, Baisden attended
showings of the stage play, and autographed copies of the DVDs. Baisden also
acted dismissively during a conversation in January of 2007 with Johnson and
Guidry, describing the DVD sales as small and behind him, and that he did not
like their look. Most importantly, the jury heard, and found credible, testimony
by Johnson and Guidry that Baisden and IRP orally agreed to continue their
relationship under the terms of the 2001 Men Cry Agreement. This was more
than sufficient for the jury to find that Baisden had granted IRP a nonexclusive
license to continue engaging in the sale of DVDs.8 Accordingly, the evidence was
sufficient for a jury to conclude that IRP was granted an implied nonexclusive
8
Defendants point to several other events to support their claim for an implied license.
These include that Baisden already knew that DVDs were being produced from the staged
productions in April of 2003, and did not object until May 4, 2007. Baisden also ordered copies
for himself and used them as a promotional tool, and sold the DVDs on his website. These acts
all occurred while the 2001 Men Cry Agreement was still in effect. As we have already
observed, the written agreements provided IRP the right to sell recordings of the stage plays.
Therefore, these facts cannot support a finding that IRP retained the right after the written
agreements expired.
9
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license. See Meredith v. La. Fed’n of Teachers, 209 F.3d 398, 403-04 (5th Cir.
2000) (plaintiff’s testimony and corroborating circumstances constituted
substantial evidence to support jury’s finding of oral contract).
Baisden resists this conclusion on a number of grounds. Of these, the
majority are raised in his reply brief. “It is well-settled that, generally, we will
not consider issues raised for the first time in a reply brief.” United States v.
Jackson, 50 F.3d 1335, 1340 n.7 (5th Cir. 1995). Although we find the majority
of Baisden’s arguments on implied nonexclusive license waived, we address them
to clarify and reaffirm our holding in Lulirama.
In Lulirama, plaintiff contracted with defendant to create advertising
jingles. Although the original contract was in writing, the parties later orally
extended it beyond the written end date. 128 F.3d at 874-75. We observed that
§ 101 of the Copyright Act expressly excludes nonexclusive licenses from §
204(a)’s writing requirement, and affirmed the district court’s holding that the
parties’ conduct granted defendant a nonexclusive license in the jingles by
implication.
Id. at 879. In so doing, we held that “[w]hen the totality of the
parties’ conduct indicates an intent to grant such permission, the result is a legal
nonexclusive license . . . .”
Id. (quoting 3 MELVILLE B. NIMMER & DAVID NIMMER,
NIMMER ON COPYRIGHT § 10.03[A], at 10-41 (1997)).
Contrary to this holding, Baisden argues that an implied license can only
arise in the context of a work-for-hire agreement. He argues that the relevant
test in Lulirama requires that “(1) a person (the licensee) request[ ] the creation
of a work, (2) the creator (the licensor) make[ ] the particular work and deliver[ ]
it to the licensee who requested it, and (3) the licensor intend[ ] that the licensee-
requestor copy and distribute the work.” Id. But Baisden ignores that those
elements were prefaced by our remark that “[o]ther circuits have held that an
implied nonexclusive license arises” when these three elements are met.
Id.
(emphasis added). To be sure, we applied those three elements in Lulirama.
10
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But we have never held that an implied license could not arise in other
circumstances where the totality of the parties’ conduct supported such an
outcome. Id.; see also Food Consulting Grp., Inc. v. Azzalino, 270 F.3d 821, 826
n.9 (9th Cir. 2001) (correctly stating test in Fifth Circuit). Other decisions
support this conclusion. See
Carson, 344 F.3d at 451-53 (considering whether
nonexclusive license was created despite defendant not having asked plaintiff
to create a product); see also Falcon Enters., Inc. v. Publishers Serv., Inc., 438 F.
App’x 579, 581 (9th Cir. 2011) (unpublished opinion) (affirming district court’s
finding of a nonexclusive license while acknowledging that licensee had not
asked copyright owner to produce copyrighted material); John G. Danielson, Inc.
v. Winchester-Conant Props., Inc.,
322 F.3d 26, 41 (1st Cir. 2003) (considering
nonexclusive license defense where third party, not defendant, requested
production of copyrighted work).
Baisden’s remaining arguments do not alter this conclusion. He argues
that because the prior 2001 Men Cry Agreement conferred an exclusive license,
the parties could not now have agreed to a nonexclusive license. But at the time
the 2005 Men Cry Agreement was made, the previous 2001 Men Cry Agreement,
which was to last only three years, had already expired. It thus could not keep
the parties from reaching a new agreement.
Also unpersuasive is Baisden’s contention that the parties could not have
intended to create an implied nonexclusive license because IRP entered into an
exclusive agreement with Image for production of the DVDs. A similar
argument was rejected by the Eleventh Circuit in Jacob Maxwell, Inc. v. Veeck,
110 F.3d 749 (11th Cir. 1997). There, plaintiff argued that “it was error for the
court to infer the creation of a nonexclusive license from the parties’ conduct
when they had explicitly agreed, albeit in an unenforceable oral exchange, to an
exclusive license.”
Id. at 752 (emphasis in original). The court held that “while
it may well be that the parties in their initial negotiations contemplated an
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exclusive license” this did not mean that plaintiff could not have “granted to the
[defendant] the sort of lesser, nonexclusive license to [use the copyrighted work]
that federal law recognizes may result from a purely oral transaction.” Id. at
753. Applying the same reasoning, we rejected the plaintiff’s argument in
Lulirama that the parties’ intent to transfer an exclusive license for the jingles
foreclosed the creation of a nonexclusive
license. 128 F.3d at 879-80.
Similarly here, we reject Baisden’s argument that Image’s intent to enter
into an exclusive agreement prevented Baisden and IRP from establishing an
implied nonexclusive license. There is nothing to suggest that IRP would not
have entered into the 2005 Men Cry Agreement absent exclusivity. Indeed, the
2001 Men Cry Agreement, on which the later agreement was based, included a
clause providing that “[i]n the event that any provision of this Agreement shall
be held invalid or unenforceable, it shall not in any way invalidate, impair or
affect the remaining provisions of this Agreement.”
Alternatively, Baisden argues that extensions to the 2001 Men Cry
Agreement had to be in writing. In relevant part, that agreement stated that
“[t]he period of this Agreement may be extended for a second three (3) year
period upon PRODUCER’S written notice received by AUTHOR at least thirty
(30) days prior to the expiration of the TERM.” Baisden seeks to infer from this
language that the agreement could only be renewed or extended in writing.
Baisden’s argument is wrong, first, because, even assuming that his
interpretation was correct, the 2001 Men Cry Agreement had expired by the time
the parties reached an oral agreement to run a second tour of Men Cry. The
terms of the expired contract could not prevent the parties from reaching a new
agreement structured on the same provisions as the old one. Second, the
agreement itself nowhere states that an extension or renewal had to be in
writing. The agreement uses the permissive term “may” to indicate that written
notice is only one of the means the agreement could be extended. See
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Retractable Techs. Inc. v. Abbott Labs. Inc., 281 F. App’x 275, 276 (5th Cir. 2008)
(per curiam) (interpreting contractual provision that disputes “may” be resolved
by arbitration as permissive rather than mandatory). Baisden also seems to
ignore that the quoted provision goes on to say that the fee for this three year
extension would be negotiated “at the time of the option notice.” Thus, Baisden’s
extension clause was really only a means by which the parties could enter into
negotiations to renew the contract. The parties remained free to reach an
alternate agreement.
Baisden also argues that the 2005 Men Cry Agreement is invalid under the
Texas Statute of Frauds. Section 26.01(a) of the Texas Business and Commerce
Code provides that “[a] promise or agreement described in Subsection (b) of this
section is not enforceable unless the promise or agreement . . . is (1) in writing;
and (2) signed by the person to be charged with the promise or agreement.”
Absent from Baisden’s argument is which part of subsection (b) applies to the
agreement. Only in his reply brief does Baisden elaborate that three subparts
apply. Of these, two—contracts conveying exclusive rights under § 204(a) and
modifications to contracts under § 204—do not actually appear in the Texas
Statute of Frauds. The third refers to subpart (b)(6), “an agreement which is not
to be performed within one year from the date of making the agreement.” Tex.
Bus. & Com. § 26.01(b)(6). Contracts for an indefinite term that could be
performed within one year do not fall within the statute of frauds. Floors
Unlimited, Inc. v. Fieldcrest Cannon, Inc., 55 F.3d 181, 186 (5th Cir. 1995); see
also Abatement Inc. v. Williams,
324 S.W.3d 858, 860 (Tex. App.—Houston [14th
Dist.] 2010, pet. denied) (“For the one-year provision to apply, performance
within one year must be impossible.”). In any event, performance takes this case
out of the statute of frauds. It is undisputed that the 2005 Men Cry Agreement
was performed within one year. The parties entered into the 2005 Men Cry
Agreement in the Summer of 2005, and the final performance of Men Cry was
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on November 20, 2005. As a result of this second tour, IRP paid Baisden over
$44,000. This is sufficient to preserve the parties’ agreement and remove it from
the statute of frauds. See Matter of Fairchild Aircraft Corp., 6 F.3d 1119, 1128-
29 (5th Cir. 1993) (discussing partial and full performance exceptions to the
statute of frauds).
Having addressed Baisden’s many arguments, and finding them
unpersuasive, we return to our original conclusion that the jury’s verdict was
supported by substantial evidence and affirm that Defendants did not infringe
Baisden’s copyrights.
C. Declaratory Judgments
Following the jury’s verdict, the district court entered a final judgment
including several declarations setting forth the parties’ respective rights.
Baisden challenges the following two declarations as improperly expanding IRP’s
copyrights.
[1.] Pursuant to ¶ II.3 of the December 2002 The
Maintenance Man Agreement, IRP owns the sole
and exclusive copyright . . . to The Maintenance
Man stage play script, associated music, and
lyrics.
[2.] Pursuant to ¶ II.3 of the Men Cry in the Dark
Agreement, IRP owns the sole and exclusive
copyright . . . to the script for its Men Cry in the
Dark stage play.
The cited agreement provisions provide, in turn, that IRP “shall retain the
copyright to the [Men Cry] STAGEPLAY, as copyright is limited to the play
script created by [IRP]” and that IRP “shall retain the sole and exclusive
copyright to the [Maintenance Man] Stageplay,” but that “[t]his copyright is
limited to the play script with associated music and lyrics created by [IRP].”
The issue is whether these declarations deprive Baisden of his copyright
in the novels. The central difficulty arises from the fact that whereas the 2001
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Men Cry Agreement and the 2002 Maintenance Man Agreement contain
language that explicitly limit IRP’s copyright to the stage play it created, the
district court’s declarations could be read to mean that IRP has a copyright to
the entire stage play, including parts taken directly from Baisden’s novels.9
Defendants fail to recognize, or ignore, this distinction and argue that
“[a]lthough the script might have been considered a derivative work in the
absence of such contractual provisions, Baisden chose to convey to IRP the
copyright to the entire script as part of the consideration in the parties’
agreement.” Baisden understandably fears that the district court’s declarations
will result in a judicial transfer of copyrights not originally envisioned in the
agreements.
Upon review, we do not agree with Baisden that the district court’s
declarations transferred any copyright that had not already been conveyed to
IRP. But nor do we agree with IRP’s interpretation that the original agreements
granted it rights in material it did not create. The district judge’s declarations
follow the language of the original agreements. They explicitly reference the
specific parts of the agreements on which they were based. Under those
agreements, Baisden only conveyed a copyright for the play scripts IRP created.
Contrary to its assertion, IRP’s copyright does not extend to the “entire script,”
but only to those parts for which it was responsible. It is clear that the district
court shared this understanding because the declarations do not give Defendants
the unrestricted right to distribute DVDs through whomever they choose, for as
long as they please. Instead, IRP was limited to distributing DVDs of Men Cry
and Maintenance Man “throughout the duration of the Image licensing
agreement.” Similarly, although IRP owed Baisden no royalties relating to
future distributions of the stage play recordings, this too was limited to the
9
According to Johnson, less than 1% of the dialogue in Maintenance Man and less than
10% of the dialogue in Men Cry came from the related novel.
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No. 11-20290
Image licensing agreement. Had IRP truly been awarded the copyright to every
part of the stage play, IRP’s rights would not have been so constrained, and it
would have been free to pursue additional marketing agreements.
So understood, the district court’s declaratory judgment is affirmed. The
rights recognized through the district court’s declarations are co-extensive with
those present in the original agreement. Those clearly limited IRP’s copyright
to material it created, and preserved Baisden’s copyrights in the novels,
including whatever parts were taken from them and incorporated into the stage
plays.
D. Motion for New Trial
The trial in this case lasted nine days and left the jury to consider a 33-
question, 29-page, verdict form. On appeal, Baisden now claims various defects
in the jury charge, verdict form, and trial proceedings. A district court’s denial
of a motion for new trial is reviewed for abuse of discretion. Alaniz v. Zamora-
Guezada, 591 F.3d 761, 770 (5th Cir. 2009). In reviewing such a denial, “all the
factors that govern our review of [the trial court’s] decision favor affirmance, and
we must affirm the verdict unless the evidence—viewed in the light most
favorable to the jury’s verdict—points so strongly and overwhelmingly in favor
of one party that the court believes that reasonable men could not arrive at a
contrary [conclusion].”
Id. This court separately considers each of Baisden’s
objections.
1. Jury Instructions
Alleged defects in a district court’s jury instructions are reviewed for abuse
of discretion. Wright v. Ford Motor Co., 508 F.3d 263, 268 (5th Cir. 2007). We
apply a two-part test to review challenges to particular instructions. Navigant
Consulting,
Inc., 508 F.3d at 293. First, an appellant must “demonstrate that
the charge as a whole creates substantial and ineradicable doubt whether the
jury has been properly guided in its deliberations.”
Id. (internal quotation
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No. 11-20290
marks omitted). Second, even where a jury instruction was erroneous, we will
not reverse the district court if we find that, in light of the entire record, “the
challenged instruction could not have affected the outcome of the case.” Id.
(internal quotation marks omitted).
Baisden argues that the district court erred in not giving the jury two of
his proposed jury instructions.10 “[T]he district court’s refusal to give a
requested jury instruction constitutes reversible error only if the instruction 1)
was a substantially correct statement of law, 2) was not substantially covered
in the charge as a whole, and 3) concerned an important point in the trial such
that the failure to instruct the jury on the issue seriously impaired the [party’s]
ability to present a given [claim].” Kanida v. Gulf Coast Med. Pers. LP, 363 F.3d
568, 578 (5th Cir. 2004) (internal quotation marks omitted, alterations in
original).
Baisden’s first requested instruction stated, in relevant part, that “[a]s a
result of the Court’s findings, you are instructed that pursuant to the Court’s
rulings, the sales of the Men Cry in the Dark DVD’s constitute an infringement
of Plaintiff’s Men Cry in the Dark copyright.” The second instruction provided
that “[a]s a result of [IRP and Image’s] admissions and the Court’s findings, you
are instructed that pursuant to the Court’s rulings, the Defendants’ failure to
provide Plaintiff with an accounting of the sales of the video recordings or pay
him royalties from those sales constitutes a breach of contract.” Both
instructions are outcome-determinative on the issues of infringement and breach
of contract. Had the district court issued those instructions there would have
10
Baisden also asserts that the jury should have been instructed that IRP could be
foreclosed from asserting rights under the parties’ agreement if IRP had itself breached it.
Because the jury concluded that IRP did not breach the agreements, we do not reach this
challenge. Similarly, Baisden challenges the district court’s instruction on implied license.
As discussed, supra, that instruction accurately stated the law in this circuit.
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No. 11-20290
been a real question why these matters were not resolved at the summary
judgment stage.
The proposed instructions highlight a point Baisden frequently returns to,
and that we address here, namely, the preclusive effect of the district court’s
summary judgment holding. In the proceedings below, Defendants moved for
summary judgment and the district judge referred the motion to a magistrate
judge. The magistrate judge recommended that Defendants’ motion be granted
as to conduct occurring outside the statute of limitations, as well as to Baisden’s
claim for tortious interference. The district court adopted the magistrate judge’s
recommendations in full.
Baisden now argues that, having accepted the magistrate judge’s
recommendation, the district court made certain findings which should not have
been submitted to the jury under the “law of the case doctrine.”11 Thus, Baisden
points out that the magistrate judge found “[n]o evidence suggest[ing] that
extensions were sought for either of the contracts at issue” and that “each
contract terminated three years after signing.”
Ignoring whether these passages actually preclude a jury from finding an
implied license, “the law-of-the-case doctrine does not operate to prevent a
district court from reconsidering prior rulings.” Zarnow v. City of Wichita Falls,
Tex., 614 F.3d 161, 171 (5th Cir. 2010). In Zarnow we observed that “[a]n order
denying summary judgment is interlocutory, and leaves the trial court free to
reconsider and reverse its decision for any reason it deems sufficient, even in the
absence of new evidence or an intervening change in or clarification of the
11
Chief among these is Baisden’s contention that the district court ruled that the novels
and the stage play were substantially similar. Although we reject this argument for the same
reasons we reject Baisden’s law of the case argument, we do not reach it, having already
concluded that any infringement claim would be precluded by the grant of an implied
nonexclusive license.
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No. 11-20290
substantive law.” Id. (internal quotation marks omitted). Baisden’s argument
that the district court was somehow prevented from doing so is without merit.
2. Verdict Form.
Baisden next challenges the verdict form. As with jury instructions, we
review verdict forms for abuse of discretion. Travelers Cas. & Sur. Co. of Am. v.
Ernst & Young L.L.P., 542 F.3d 475, 489 (5th Cir. 2008); Barton’s Disposal Serv.,
Inc. v. Tiger Corp.,
886 F.2d 1430, 1434 (5th Cir. 1989) (“Generally, a trial court
is afforded great latitude in the framing and structure of the instructions and
special interrogatories given to the jury, so much so since we are loath to disturb
that discretion absent a showing of abuse of discretion.”).
Baisden challenges the verdict form’s first question, which asked: “Do you
find that IRP or Image directly infringed copyrights owned by the Plaintiffs in
the novels Men Cry in the Dark and The Maintenance Man? Answer ‘Yes’ or ‘No’
as to each alleged act of infringement.” The question then lists IRP and Image
and provides separate response lines for Maintenance Man video sales, Men Cry
in the Dark video sales, and the second Men Cry tour. The jury responded “No”
as to each defendant and all infringing acts.
Baisden now contends that this question had the effect of conflating the
question of license (an affirmative defense on which Defendants bore the burden
of proof) with that of infringement (a claim on which Baisden carried the
burden). The alleged effect of this question was thus to confuse jurors and
prejudice Baisden by burdening him with showing that Defendants did not have
a license.
We agree that the form of the question is not a model of clarity.
Nevertheless, the mere fact that issues of liability and affirmative defense were
combined into a single question is not grounds for a new trial. See Sikes v.
Gaytan, 218 F.3d 491, 494 (5th Cir. 2000) (holding that district court did not
19
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No. 11-20290
abuse its discretion in combining issues of liability and qualified immunity into
single interrogatory). Two observations further buttress our conclusion.
First, Baisden failed to timely object to the form of the question. Where
a proper objection to a verdict form is not made, we limit review to plain error.
See Jimenez v. Wood Cnty., Tex., 660 F.3d 841, 845 (5th Cir. 2011) (en banc). To
demonstrate plain error, an appellant must show 1) an error 2) that is clear or
obvious 3) that affected the appellant’s substantial rights. Puckett v. United
States,
556 U.S. 129, 135 (2009). If such a showing is made, a court may, in its
discretion, remedy the error.
Id.
The district judge reviewed the proposed instruction on license with the
parties on February 24, 2011, including three of Baisden’s proposed questions
asking the jury whether IRP had a license for Men Cry in the Dark, The
Maintenance Man, and the 2005 Men Cry stage play. The district judge gave
Baisden the opportunity to explain why he would be prejudiced by the verdict
form’s question. But on February 28, 2011 when the district judge again spoke
with the parties, Baisden raised no objection to this part of the verdict form. In
his supplemental objections to the district court’s final jury charge there also
was no objection to the verdict form’s first question. Even in his motion for new
trial, Baisden did not address errors relating to this interrogatory. Thus, to the
extent there is any error in the verdict form, it would only warrant a new trial
if it were clear and obvious and affected Baisden’s substantial rights.
Second, a review of the record shows that the plain error standard was not
met. The district judge’s instructions make clear that the jury would not have
been confused by the form of the question. It instructed the jurors, in relevant
part, that:
A claim for copyright infringement is barred if a
defendant has an express or implied license authorizing
use of the copyrighted work. Defendants contend that
Baisden gave them a license to use the copyrighted
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No. 11-20290
works . . . . The burden is on Defendants to prove the
existence of a license by a preponderance of the evidence.
If Defendants satisfy this burden then in order for
Baisden to prevail, Baisden must prove by a
preponderance of the evidence that Defendants’ copying
was not authorized by the license.
(emphasis added).
Provided this instruction, we do not believe the jury would have been so
confused by the question as to necessitate a new trial. The district judge
correctly instructed the jurors on the parties’ respective burdens. “[J]uries are
presumed to follow their instructions.” Zafiro v. United States, 506 U.S. 534, 540
(1993). Baisden has presented nothing to convince us that this jury did
otherwise. As a result, Baisden cannot show that his substantial rights were
affected and has therefore failed to show plain error.12
Baisden also contends that the jury’s verdict was inconsistent or,
alternatively, not supported by sufficient evidence. He takes issue with its
finding that IRP and Image entered into an agreement after IRP’s corporate
franchise had lapsed. But forfeiture of a corporate charter does not extinguish
a corporate entity. Hinkle v. Adams, 74 S.W.3d 189, 193-94 (Tex.
App.—Texarkana 2002, no pet.). A charter and corporate privileges can be
retroactively reinstated provided a corporation pays whatever taxes it owes, in
which case “it is as though the forfeiture never existed.”
Id. at 194. Here, the
jury found that IRP’s corporate franchise lapsed between April 9, 2004 and May
12
While arguing that the district court should have broken up the first interrogatory,
he also complains that the district court then asked too many questions on contractual and
equitable defenses. Having found no infringement in the first question, the jury did not reach
these other questions and left them blank. Accordingly, they had no adverse impact on
Baisden sufficient to warrant a new trial.
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No. 11-20290
24, 2006. From May 24, 2006 onwards it was reinstated, and retroactively
revived for the period in lapse.13, 14
3. Evidentiary Issues
Baisden also raises a series of evidentiary issues that he believes entitle
him to a new trial. Generally, any error in admitting or excluding evidence is
not grounds for a new trial. Fed. R. Civ. P. 61. We review the admission or
exclusion of evidence for abuse of discretion. Tompkins v. Cyr, 202 F.3d 770, 779
(5th Cir. 2000). Should we find that a district court has abused its discretion we
review the error under the harmless error doctrine, and will affirm the ruling
unless it “affected substantial rights of the complaining party.” Bocanegra v.
Vicmar Servs., Inc.,
320 F.3d 581, 584 (5th Cir. 2003).
Baisden’s principal objection is that he was not allowed to read the novels
Men Cry in the Dark and The Maintenance Man into the record, nor show the
entirety of the Maintenance Man DVD. Baisden provides no authority for the
proposition that a jury must be read or shown every part of a disputed work
during a copyright infringement trial. Here, the novels were each over 300
pages long. The DVDs were both over two hours long. The district court made
a reasoned decision that granting Baisden’s request would be cumulative and
would significantly draw out an already lengthy trial. Importantly, the district
court permitted extensive testimony on the works. Both Baisden and Johnson
testified and were cross-examined on the similarities between the novels and the
13
Baisden contends that there is a conflict between the jury finding both that the
parties entered into written agreements providing for certain merchandise royalty terms and
that IRP did not breach those terms despite having failed to comply with them. This
argument is without merit because the jury also found that the parties entered into an
agreement whereby each would keep its own merchandise revenues.
14
Baisden’s argument that the agreement between IRP and Image did not go into effect
until IRP completed delivery of various items required under the contract, including a
certificate of incorporation and chain of title, is without merit. The agreement clearly states
that it was effective November 15, 2005.
22
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No. 11-20290
stage plays. That testimony covered each story’s concept, plot, characters, and
dialogue. The district court also permitted the jury to watch the entirety of the
Men Cry DVD. The jury also had both the novels and DVDs during deliberations
and was properly instructed that a “side-by-side comparison must be made
between the original and the copy to determine whether the intended audience
would view the two works as substantially similar.”15 This obviated any need to
read the novels into the record or have the jury watch another two-hour DVD.
In any case, because we uphold the jury’s verdict on the basis of an implied
nonexclusive license, any errors relating to whether the works were
substantially similar would not mandate a new trial.
Baisden also complains that the admission of IRP’s derivative copyrights
confused the jury’s understanding of what rights a derivative copyright holder
could transfer.16 It is unclear how the jury would have been confused simply by
the admission of the copyrights. Baisden has also not made clear how the jury’s
verdict would have differed had the copyrights been excluded.
Finally, Baisden argues that statements made by Defendants’ counsel
were “designed to have a negative impact on the jury’s perception” of him. He
singles out counsel’s questions on the overlap between his marriage and his
authoring the book, Never Satisfied: How and Why Men Cheat, other aspects of
his family life, and that he only “stopped in Houston, Texas on his way from the
South Side of Chicago by way of Dallas.”
15
Less clear is whether the jury had access to a DVD player during deliberations. As
the parties’ briefs do not address this issue, and because we find that Baisden did grant an
implied license, this court will not speculate on this point further.
16
A derivative copyright is a copyright to a “work based upon one or more preexisting
works, such as a translation, musical arrangement, dramatization, fictionalization, motion
picture version, sound recording, art reproduction, abridgment, condensation, or any other
form in which a work may be recast, transformed, or adapted.” 17 U.S.C. § 101. Such a
copyright “extends only to the material contributed by the author of such work, as
distinguished from the preexisting material employed in the work, and does not imply any
exclusive right in the preexisting material.” 17 U.S.C. § 103(b).
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No. 11-20290
A motion for new trial premised on improper arguments by counsel should
only be granted when “improper closing argument irreparably prejudices a jury
verdict or if a jury fails to follow instructions.” Nissho-Iwai Co., Ltd. v.
Occidental Crude Sales, Inc., 848 F.2d 613, 619 (5th Cir. 1988). We will not
reverse a grant or denial of a new trial unless the district court abused its
discretion.
Id. We also recognize that “[a] trial judge is generally better able
than an appellate court to evaluate the prejudice flowing from improper jury
arguments.” Caldarera v. E. Airlines, Inc.,
705 F.2d 778 (5th Cir. 1983).
Although Baisden alleges prejudice now, he raised no objection to the
statements at trial. Baisden has thus waived his objection to these statements,
and this court need not consider them. See Colburn v. Bunge Towing, Inc., 883
F.2d 372, 376 (5th Cir. 1989) (where defendant failed to move for mistrial on
basis of remarks, court would “not now entertain [defendant’s] argument that
[plaintiff’s] trial tactics are grounds for a new trial”); Nissho-Iwai Co.,
Ltd., 848
F.2d at 619.17
Accordingly, we affirm the district court’s denial of Baisden’s motion for
a new trial.
17
Baisden has also made no effort to show how these statements would have affected
the outcome at trial. Moreover, none of the statements rise to the level of severity that would
require a new trial to avoid a miscarriage of justice. See McClaran v. Plastic Indus., Inc., 97
F.3d 347, 359-60 (9th Cir. 1996) (repeated references to manufacturer’s wealth and power,
plaintiff’s hard-working nature and difficult financial circumstances, appeal to regional bias,
attempt to coach witness with baseless objections, and repeated questions about inflammatory
subjects not sufficiently severe to warrant new trial).
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No. 11-20290
E. Tortious Interference18
In addition to his claims for copyright infringement and breach of contract,
Baisden also brought a claim for tortious interference. Baisden’s claim was
premised on an option contract between Farcor Baisden Partnership, L.L.C. and
Behave Productions, Inc., to develop a Maintenance Man movie. The district
court granted Defendants’ motion for summary judgment as to this claim for lack
of standing. The district court based its decision on the fact that Baisden was
not a party to the contract at issue, and that Farcor Baisden Partnership, L.L.C.
was not named as a party in this action. On appeal, Baisden renews his
argument that he was an intended third-party beneficiary because the contract
directed that payments be made directly to him and that he provide chain of
title.
We agree with the district court that this claim was properly dismissed for
lack of standing. Baisden was not a party to the contract and thus cannot assert
a claim for tortious interference. See Nauslar v. Coors Brewing Co., 170 S.W.3d
242, 250 (Tex. App.—Dallas 2005, no pet.) (“A partner has no individual,
separate cause of action for losses suffered by reason of tortious interference
with a contract between the partnership and a third party: damages for loss in
value of the partnership interest or employment losses are subsumed in the
partnership’s causes of action.”); Hill v. Baylor Univ. Med. Ctr., No. 05-97-00238,
2000 WL 31795, at *1-*3 (Tex. App.—Dallas Jan. 18, 2000, pet. denied)
(unpublished opinion) (holding that plaintiff, who signed contract at issue as
president of each of two contracting parties but who sued for tortious
interference in only his personal capacity, lacked standing “[b]ecause the cause
18
Baisden also appears to argue that the district court erred in not entering judgment
as a matter of law in favor of his breach of contract claim. But while including this in his
argument summary he fails to include it in his principal brief. “A party that asserts an
argument on appeal, but fails to adequately brief it, is deemed to have waived it.” United
States v. Scroggins, 599 F.3d 433, 446 (5th Cir. 2010).
25
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No. 11-20290
of action for tortious interference is recognized for ‘a party to a contract’”). The
cases Baisden relies on in opposition are inapposite. See Stine v. Stewart, 80
S.W.3d 586, 589 (Tex. 2002) (discussing third-party beneficiary status in context
of breach of contract claim).19
F. Attorneys’ Fees
Defendants’ sole point of error is the district court’s decision not to award
them attorneys’ fees. Pursuant to § 505 of the Copyright Act, a court may award
reasonable attorneys’ fees to the prevailing party in a copyright dispute. 17
U.S.C. § 505. We review a district court’s decision to deny attorneys’ fees for
abuse of discretion. Positive Black Talk Inc., 394 F.3d at 380.
The district court considered the arguments Defendants renew on appeal
and concluded that Baisden’s suit was neither frivolous nor unreasonable. The
district court reached its conclusion by correctly applying the factors discussed
in Fogerty v. Fantasy, Inc., 510 U.S. 517, 534 (1994). The court took particular
note of the fact that Baisden’s suit survived several pretrial motions and
resulted in a nine-day jury trial. Finding no error in the district court’s
reasoning and agreeing with its assessment of Baisden’s claims, we hold that the
district court did not abuse its discretion. The district court’s decision to deny
attorneys’ fees is affirmed.
19
In his reply brief, Baisden argues, for the first time, that Farcor Baisden Partnership,
L.L.C. has dissolved, leaving him to bring a suit for tortious interference. However, “[w]hile
the proof required to establish standing increases as the suit proceeds, the standing inquiry
remains focused on whether the party invoking jurisdiction had the requisite stake in the
outcome when the suit was filed.” Davis v. Fed. Election Comm’n, 554 U.S. 724, 734 (2008)
(citations omitted); Carr v. Alta Verde Indus., Inc.,
931 F.2d 1055 (5th Cir. 1991) (“As with all
questions of subject matter jurisdiction except mootness, standing is determined as of the date
of the filing of the complaint . . . .”). Baisden thus had to establish standing at the time his
suit was filed. Having failed to do so, his claim for tortious interference was properly
dismissed.
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No. 11-20290
III. CONCLUSION
For the aforementioned reasons, the district court’s judgment is
AFFIRMED in all respects.
27
