JYSK Bed'N Linen v. Monosij Dutta-Roy

• Court: Court of Appeals for the Eleventh Circuit
• Decided: September 23, 2019
• Docket: 18-14410
• Status: Unpublished

Opinion

Case: 18-14410 Date Filed: 09/23/2019 Page: 1 of 12

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 18-14410 Non-Argument Calendar ________________________

D.C. Docket No. 1:12-cv-03198-TWT

JYSK BED'N LINEN, d.b.a. By Design Furniture, as successor to Quick Ship Holding, Inc., d.b.a. By Design Furniture,

Plaintiff-Counter Defendant-Appellee,

versus

MONOSIJ DUTTA-ROY,

Defendant-Counter Claimant-Appellant.

________________________

Appeal from the United States District Court for the Northern District of Georgia ________________________

(September 23, 2019)

Before MARTIN, NEWSOM, and ANDERSON, Circuit Judges.

PER CURIAM: Case: 18-14410 Date Filed: 09/23/2019 Page: 2 of 12

Monosij Dutta-Roy (“Dutta-Roy”), proceeding pro se, appeals from the

district court’s grant of summary judgment in favor of Jysk Bed’N Linen (“Jysk”),

a furniture retailer: (i) in its trademark infringement suit against Dutta-Roy under

the Anticybersquatting Consumer Protection Act (“ACPA”), 15 U.S.C. § 1125(d);

and (ii) with respect to Dutta-Roy’s state law counterclaims for breach of contract,

unjust enrichment, quantum meruit, equitable accounting, and attorneys’ fees. As

it pertains to the district court’s grant of summary judgment in favor of Jysk on

Dutta-Roy’s counterclaims, Dutta-Roy argues that the district court erred because

his evidence and affidavits showed that there was a partnership agreement that

entitled him to payment for his work. For the reasons described below, we affirm.

I.

We assume the parties are familiar with the case’s history and summarize

the proceedings and facts only insofar as necessary to provide context for our

decision.

Jysk, a retail furniture seller, filed this suit against Dutta-Roy in 2012,

alleging, among other claims, cybersquatting violations of the ACPA. Jysk alleged

that it had continuously used the inherently distinctive “bydesignfurniture.com”

trademark since 1999. In 2012, it discovered that its website was offline and

inaccessible because Dutta-Roy, who had originally registered the website at

Jysk’s direction, had allowed the website registration to expire. Dutta-Roy had

2 Case: 18-14410 Date Filed: 09/23/2019 Page: 3 of 12

listed himself as the website’s owner, and Jysk could not renew the website

without his permission. Dutta-Roy renewed the website in his own name, took

control of the website to the exclusion of Jysk, and demanded payment for any

transfer of ownership.

Dutta-Roy denied liability and asserted counterclaims for breach of contract,

unjust enrichment, quantum meruit, and breach of fiduciary duty, and sought an

equitable accounting and attorneys’ fees, all under Georgia law. Dutta-Roy alleged

that he and several individuals had formed BazaarWorks, LLC (“BazaarWorks”)

for the purpose of developing a website for Jysk’s predecessor. He alleged that

BazaarWorks entered into a “partnership agreement” with Jysk’s predecessor; as

part of that agreement, Dutta-Roy registered the domain “bydesignfurniture.com”

and developed the website online. Dutta-Roy alleged that Jysk failed to

compensate him for the work he performed, failed to disclose the revenue

generated by the website, and failed to compensate him based on that revenue. He

sought $1,000,000 in actual damages, the reasonable value of his labor, equitable

accounting, and attorneys’ fees.

Jysk moved for summary judgment on its affirmative claims and Dutta-

Roy’s counterclaims. It contended that it had asked Dutta-Roy’s former employer

to develop a website for its “By Design Furniture” mark, and that despite its

instruction to register the domain in Jysk’s name, Dutta-Roy registered it in his

3 Case: 18-14410 Date Filed: 09/23/2019 Page: 4 of 12

own name. In addition to registering “bydesignfurniture.com”, he also registered

“bydesignfurniture.org”, “bydesignfurnitures.com”, and “bydesign-

furnitures.com”, before offering to sell these domain names to Jysk for millions of

dollars. With respect to Dutta-Roy’s counterclaims, Jysk contended that Dutta-

Roy’s equitable claims for quantum meruit and unjust enrichment were barred by

the applicable four-year statute of limitations because Dutta-Roy never rendered

any services for Jysk after 2005. And Jysk argued that the rest of Dutta-Roy’s

counterclaims failed for lack of privity of contract.

Jysk claimed that Dutta-Roy had produced no evidence of any partnership

agreement between Jysk and BazaarWorks, and that any such agreement would not

have included Dutta-Roy as a party. Jysk attached multiple sworn affidavits

stating that neither Jysk nor Jysk’s predecessor executed any written agreement

with Dutta-Roy or BazaarWorks regarding the development of the

“bydesignfurniture.com” website. It also attached an excerpt of Dutta-Roy’s

response to Jysk’s interrogatories admitting that he was unaware of any fact,

observation, document, or item of evidence showing that BazaarWorks and Jysk’s

predecessor ever executed a written agreement.

Dutta-Roy opposed Jysk’s motion for summary judgment. With respect to

his counterclaims, Dutta-Roy attached his own affidavit, to which he attached what

he alleged to be a draft of the partnership agreement. This document indicated a

4 Case: 18-14410 Date Filed: 09/23/2019 Page: 5 of 12

potential agreement between Jysk’s predecessor and BazaarWorks, but was neither

dated nor signed by any party. Dutta-Roy also attached an email exchange

between himself and a Jysk employee that referenced an undescribed written

agreement. Jysk responded to this by submitting additional affidavits, including

one from the employee in the email exchange. This employee stated that the

emails referred to an agreement to purchase servers that was unrelated to the

litigation.

The district court granted Jysk’s summary judgment motions. It concluded

that Jysk held a trademark in its mark, and that Dutta-Roy violated the ACPA by

registering “bydesignfurniture.com” and the other domain names in 2012. The

district court ordered Dutta-Roy to transfer the domain names to Jysk. The district

court also concluded that Dutta-Roy failed to demonstrate a contractual

relationship between himself and Jysk, that his equitable claims were time-barred,

that Dutta-Roy failed to demonstrate a fiduciary relationship, and that Dutta-Roy

was not entitled to an equitable accounting or attorneys’ fees because he could not

succeed on his underlying claims.

After a lengthy procedural back-and-forth involving multiple appeals to this

Court and post-judgment motions, Dutta-Roy filed a Rule 60(b) motion to vacate

the district court’s orders and sought a default judgment against Jysk, which the

district court denied. Dutta-Roy filed a timely notice of appeal, designating the

5 Case: 18-14410 Date Filed: 09/23/2019 Page: 6 of 12

district court’s final judgment, which encompassed its grants of summary

judgment, and the district court’s order denying his Rule 60(b) motion. Dutta-Roy

has since filed a motion for equitable accounting in this Court.

II.

We review a grant of summary judgment de novo and view all evidence and

factual inferences reasonably drawn from the evidence in the light most favorable

to the nonmoving party. Castleberry v. Goldome Credit Corp., 408 F.3d 773, 785

(11th Cir. 2005). Summary judgment is appropriate if the record evidence,

including depositions, declarations, and affidavits, show that there is no genuine

issue as to any material fact and that the moving party is entitled to a judgment as a

matter of law. Fed. R. Civ. P. 56(a). The moving party has the burden of

demonstrating that there are no genuine issues of material fact, but once that

burden is met the burden shifts to the nonmoving party to bring the court’s

attention to evidence demonstrating a genuine issue for trial. Paylor v. Harford

Fire Ins. Co., 748 F.3d 1117, 1121 (11th Cir. 2014). Overcoming that burden

requires more than speculation or a mere scintilla of evidence. Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S. Ct. 2505, 2512 (1986). Rather,

there must be enough of a showing that the jury could reasonably find for that

party. Id.

6 Case: 18-14410 Date Filed: 09/23/2019 Page: 7 of 12

III.

A. Abandonment of Claims of Error and Counterclaims

Issues on appeal must be raised plainly and prominently. Sapuppo v.

Allstate Floridian Ins. Co., 739 F.3d 678, 680–82 (11th Cir. 2014). Passing

reference to a claim without support or citation is not enough to preserve an issue.

Id. Appellants should identify issues they wish the Court to address on appeal in

their statement of issues and clearly devote a distinct section of their argument to

those issues. Id. Issues not briefed are deemed abandoned. Timson v. Sampson,

518 F.3d 870, 874 (11th Cir. 2008). Notwithstanding our principle of reading pro

se briefs liberally, these rules of abandonment apply to both represented parties and

pro se litigants. Id.

We conclude that Dutta-Roy has abandoned any argument that the district

court erred in granting summary judgment in favor of Jysk with respect to its

ACPA claim because he failed to brief the issue on appeal. Timson, 518 F.3d at

874. Nowhere in his brief does Dutta-Roy expressly challenge the district court’s

grant of summary judgment against him on Jysk’s ACPA claim, including in his

Statement of the Issues. Dutta-Roy makes perfunctory reference to his argument

that the ACPA is “non-retroactive,” but fails to cite authority or devote a specific

section of his brief to this issue; this is insufficient to preserve the issue on appeal.

See Sapuppo, 739 F.3d at 680-82. Dutta-Roy’s brief is focused instead on the

7 Case: 18-14410 Date Filed: 09/23/2019 Page: 8 of 12

district court’s grant of summary judgment against him on his counterclaims.

Because Dutta-Roy fails to challenge adequately the district court’s ruling on

Jysk’s ACPA claim, he has abandoned any argument on the issue.

Dutta-Roy has also abandoned his equitable claims. Georgia provides

quantum meruit and unjust enrichment theories of recovery when, under certain

circumstances, parties cannot recover under a contract. Hemispherx Biopharma,

Inc. v. Mid-South Capital, Inc., 690 F.3d 1216, 1227 (11th Cir. 2012). These

equitable theories permit a party who cannot recover under a contract to receive

compensation for performing a valuable service (quantum meruit) or conferring a

benefit on another (unjust enrichment). Id. at 1230. The statute of limitations on

both claims is four years. O.C.G.A. § 9-3-26.

The district court concluded that Dutta-Roy produced no evidence that he

had performed any work on Jysk’s behalf since 2005. Dutta-Roy makes a fleeting

reference to the limitations period in an otherwise unrelated section of his brief, but

does not dedicate a discrete section to the issue and cites to no authority. He has

therefore abandoned the statute of limitations issue. Timson, 518 F.3d at 874. In

any event, Dutta-Roy does not refute Jysk’s claim that the last time Dutta-Roy

offered services to Jysk was in 2005. He therefore had until 2009 at the latest to

assert his equitable claims; because he asserted them in 2012, they were time-

barred.

8 Case: 18-14410 Date Filed: 09/23/2019 Page: 9 of 12

Dutta-Roy has also abandoned any argument that the district court erred in

denying his 60(b) motion. He does not argue in his brief that his motion should

have been granted, and mentions Fed. R. Civ. P. 60(b) only once in his brief, in the

heading of an unrelated section. This is not enough to raise the issue on appeal,

and it is abandoned. Timson, 518 F.3d at 874.

B. Dutta-Roy’s Remaining Counterclaims

The district court did not err by granting summary judgment in Jysk’s favor

with respect to the rest of Dutta-Roy’s counterclaims.

Dutta-Roy did not present sufficient evidence to establish a breach of

contract. In Georgia, a valid contract must have a subject matter, consideration,

and mutual assent by all parties to all terms. Dibrell Bros. Int’l S.A. v. Banca

Nazionale Del Lavoro, 38 F.3d 1571, 1582 (11th Cir. 1994). The agreement must

be expressed plainly and explicitly enough to show what the parties agreed upon.

Id.

Dutta-Roy presented no evidence from which a jury could reasonably infer

the existence of an agreement between himself and Jysk. Anderson, 477 U.S. at

252, 106 S. Ct. at 2512. Several Jysk employees stated in sworn affidavits that

there was no agreement between between Jysk and Dutta-Roy. In response, Dutta-

Roy attached a partnership agreement between BazaarWorks—not Dutta-Roy—

and Jysk’s predecessor. This agreement was unexecuted, with blank spaces for the

9 Case: 18-14410 Date Filed: 09/23/2019 Page: 10 of 12

parties’ signatures and the date of execution. Dutta-Roy also attached an email

that appears to relate to Jysk’s recovery of computer equipment from Dutta-Roy.

An unexecuted agreement to which Dutta-Roy was not a party and an

ambiguous email are together, at most, a “mere . . . scintilla” of evidence in

support of Dutta-Roy’s contention that a contract existed between the parties.

Anderson, 477 U.S. at 252, 106 S. Ct. at 2512. Dutta-Roy has presented no

evidence of mutual assent between himself and Jysk regarding a plain and explicit

set of terms, and no reasonable jury could infer that Jysk breached a contract with

Dutta-Roy. Id.; Dibrell Bros. Int’l S.A., 38 F.3d at 1582. The district court

therefore did not err in granting summary judgment.

Dutta-Roy has also presented no evidence from which a reasonable jury

could infer the existence of a fiduciary duty owed to him by Jysk. Under Georgia

law, establishing a claim for breach of fiduciary duty requires proof of three

elements: (1) the existence of a fiduciary duty; (2) breach of that duty; and (3)

damage proximately caused by the breach. Atwater v. National Football League

Players Ass’n, 626 F.3d 1170, 1183 (11th Cir. 2010). A fiduciary relationship

“arises where one party is so situated as to exercise a controlling influence over the

will, conduct, and interest of another or where, from a similar relationship of

mutual confidence, the law requires the utmost good faith, such as the relationship

between partners, principal and agent.” Id. (internal citations omitted). The party

10 Case: 18-14410 Date Filed: 09/23/2019 Page: 11 of 12

asserting the existence of a fiduciary or confidential relationship bears the burden

of establishing its existence. Id. at 1183-84 (internal citations omitted).

Again, the non-executed agreement and ambiguous email constitute nothing

more than a scintilla of evidence, at best, supporting the contention that a fiduciary

obligation existed. Anderson, 477 U.S. at 252, 106 S. Ct. at 2512. Because Dutta-

Roy cannot demonstrate the existence of a fiduciary duty, the district court’s grant

of summary judgment was appropriate.

Under Georgia law, equitable accounting requires a plaintiff to introduce

evidence that would allow the fact finder to determine the amount owed. Therrell

v. Ga. Marble Holdings Corp., 960 F.2d 1555, 1565 (11th Cir. 1992).

Additionally, attorneys’ fees are not recoverable where there is no award of

damages or other relief on any underlying claim. Alea London Ltd. v. Am. Home

Servs., 638 F.3d 768, 780 (11th Cir. 2011).

Because Dutta-Roy has not shown that he is entitled to any damages, there is

no evidence that would allow a fact finder to determine the amount he is owed. He

is therefore not entitled to an equitable accounting. Therrell, 960 F.2d at 1565.

And because he is not entitled to damages or other relief, he is not entitled to

attorneys’ fees. Alea London Ltd., 638 F.3d at 780.

11 Case: 18-14410 Date Filed: 09/23/2019 Page: 12 of 12

For these reasons, we affirm the judgment of the district court.1

AFFIRMED.

1 All other arguments asserted by Dutta-Roy on appeal are denied without further discussion. Dutta-Roy’s pending motion for an equitable accounting, which overlaps substantially with his claim in the district court for an equitable accounting, is likewise denied. Dutta-Roy’s request for oral argument is denied. 12