Case: 19-11070 Date Filed: 09/04/2020 Page: 1 of 15
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 19-11070 Non-Argument Calendar ________________________
D.C. Docket No. 6:17-cv-00710-RBD-DCI
SHIRLEY JOHNSON,
Plaintiff-Appellant,
versus
NEW DESTINY CHRISTIAN CENTER CHURCH, INC., et al.,
Defendants-Appellees.
________________________
Appeal from the United States District Court for the Middle District of Florida ________________________
(September 4, 2020)
Before BRANCH, HULL, and MARCUS, Circuit Judges.
PER CURIAM: Case: 19-11070 Date Filed: 09/04/2020 Page: 2 of 15
Shirley Johnson,1 proceeding pro se, appeals the district court’s order
granting summary judgment against her in her suit for misrepresentation of
copyright infringement and abuse of process against New Destiny Christian Center
Church and Paula White. On appeal, Johnson argues that the magistrate judge
abused his discretion in compelling her deposition, deferring discovery of certain
financial documents, and denying her leave to amend her complaint. She also
argues that the district court erred in granting summary judgment against her on
her claims for misrepresentation of copyright infringement under 17 U.S.C.
§ 512(f), and abuse of process under Florida law because genuine issues of
material fact existed as to whether the appellees had a subjective good faith belief
that a copyright violation occurred and whether the appellees’ previous copyright
action against her constituted an abuse of judicial process. We affirm.
I. Background
a. Prior Case
This case comes to the court on the heels of this Court’s decision in an
earlier, related lawsuit brought by Johnson—Johnson v. New Destiny Christian
Ctr. Church, Inc., 771 F. App’x 991 (11th Cir. 2019) (unpublished) (“Johnson I”).
As Johnson I lays out the same facts underlying this case, it is unnecessary for us
to address them in detail here; a brief summary of the facts and procedural history
1 Johnson was identified as “Shirley Jn Johnson” before the district court. 2 Case: 19-11070 Date Filed: 09/04/2020 Page: 3 of 15
suffices. After Paul White Ministries (“PWM”) voluntarily dismissed a copyright
lawsuit against Johnson, Johnson filed a complaint, pro se, against the New
Destiny Christian Center Church, PWM, and Paula White alleging malicious
prosecution. 2 Johnson I, 771 F. App’x at 993. Johnson sought non-economic and
nominal damages pursuant to 17 U.S.C. § 512(f) and punitive damages pursuant to
Fla. Stat. § 768.73. Id. During the course of Johnson I, the district court had
dismissed for lack of subject matter jurisdiction a claim Johnson had labeled as
§ 512(f). 3 The district court awarded, and this court affirmed, economic damages
for costs incurred by Johnson defending herself against the copyright action and
non-economic damages for emotional distress related to the same but refused to
award punitive damages. Johnson I, 771 F. App’x 991.
b. This Case
On April 20, 2017, while the initial malicious prosecution lawsuit was being
litigated, Johnson brought the instant pro se suit against the New Destiny Christian
2 As described in Johnson I, the initial copyright infringement lawsuit brought by PMW against Johnson concerned Johnson’s use of her YouTube channel to post videos of White’s sermons at NDCC, “commenting on and critiquing them, and arguing that White misrepresents the true tenets of Christianity.” 771 F. App’x at 992. Following its counsel’s advice that the legal fees outweighed any benefit from the suit, PMW voluntarily dismissed it. Id. at 992–93. 3 In Johnson’s Third Amended Verified Complaint for Malicious Prosecution, Johnson did not allege misrepresentation of copyright infringement under § 512(f); instead, she requested non-economic damages and nominal damages for malicious prosecution pursuant to § 512(f). The district court dismissed Johnson’s § 512(f) claim for lack of subject matter jurisdiction, reasoning that Johnson failed to state a proper claim under § 512(f)—her claim was for malicious prosecution, not misrepresentation of copyright infringement—and Johnson had invoked the court’s jurisdiction on diversity grounds, not federal question jurisdiction. 3 Case: 19-11070 Date Filed: 09/04/2020 Page: 4 of 15
Center Church and Paula White (collectively, “NDCC”), claiming that they had
misrepresented copyright infringement in violation of 17 U.S.C. § 512(f). Johnson
also alleged that NDCC brought their original copyright action with the ulterior
motive of misusing the judicial system to harass and punish her, which constituted
an abuse of process.
The district court issued a Case Management and Scheduling Order directing
the parties to, inter alia, submit any motions to amend the pleadings by August 14,
2017, and complete all discovery by October 1, 2018. Three of the magistrate
judge’s subsequent case management orders are relevant to this appeal:
First, after NDCC unsuccessfully attempted to depose Johnson, they moved
for an order compelling her to submit to a deposition. The magistrate judge
granted the motion, despite Johnson’s opposition, and ordered her to be deposed.
Second, NDCC moved for a protective order to postpone their response to
Johnson’s discovery requests seeking their financial documents until after the court
ruled on the parties’ dispositive motions, claiming that such documents were
unnecessary. In granting the motion, the magistrate judge relied on Johnson I, in
which Johnson also sought discovery of NDCC’s financial documents to support
her punitive damages claim. In Johnson I, the district court found that such
discovery was inappropriate as punitive damages were not warranted because
NDCC had a good faith basis to support their copyright action. The magistrate
4 Case: 19-11070 Date Filed: 09/04/2020 Page: 5 of 15
judge noted that the Eleventh Circuit had affirmed that ruling. Therefore, the
magistrate judge reasoned that here, similarly, disclosure of the financial
documents was unnecessary until the court ruled on the parties’ dispositive
motions.
Third, on September 28, 2018—over a year after the deadline to amend
pleadings—Johnson moved for leave to amend her complaint for the second time.
NDCC responded that leave should not be granted because the deadline had long
passed, and Johnson did not allege any good cause to extend the deadline. The
magistrate judge denied Johnson’s motion and agreed with NDCC, holding that the
deadline to amend her complaint expired over a year ago, and Johnson had not
demonstrated the requisite good cause to allow an amendment. To the contrary,
the magistrate judge found that Johnson had full knowledge of the information she
sought leave to include in the amendment and therefore she lacked diligence.
Importantly, as to all the above orders, Johnson did not seek review of the
magistrate rulings from the district court.
After discovery, NDCC moved for summary judgment on both the § 512(f)
misrepresentation of copyright infringement claim and the abuse of process claim.
NDCC alleged that the evidence showed they had a subjective good faith belief
when PWM sent YouTube takedown notifications claiming that Johnson’s videos
infringed on their copyrighted material and this good faith belief was a defense to
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Johnson’s misrepresentation of copyright infringement claim. NDCC also
submitted three supporting affidavits—one from Bradley Knight (White’s son) and
two from their attorneys—contending that before they sent the takedown notices
they consulted with counsel and analyzed whether Johnson’s posting of the videos
constituted “fair use.” Thus, NDCC’s actions could not constitute an abuse of
process because their takedown notices and subsequent legal action were not done
maliciously.
The district court agreed with NDCC and granted their motion for summary
judgment. It first considered Johnson’s misrepresentation of copyright
infringement claim under § 512(f). The district court stated that it is a complete
defense to a § 512(f) claim if the party that issued the takedown notice had a
subjective good faith belief that the use in question was not authorized and it found
that the evidence showed that NDCC acted in good faith. Further, it found that
Johnson did not come forth with sufficient evidence to call NDCC’s good faith
belief into question. Thus, Johnson failed to show NDCC made a knowing
misrepresentation of copyright infringement.
The district court then addressed the abuse of process claim. It determined
that NDCC based their original copyright action on their subjective good faith
belief that Johnson’s videos were infringing their copyright. And no evidence
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supported Johnson’s assertion that the original copyright action was meant to
harass and intimidate her.
For these reasons, the district court therefore granted summary judgment in
favor of NDCC on both claims. Johnson timely appealed (1) the magistrate
judge’s orders compelling her deposition, denying her motion to compel discovery,
and denying her motion to amend her complaint, and (2) the grant of summary
judgment in favor of NDCC.
II. Waiver of Right to Appeal the Magistrate Judge’s Orders
Nondispositive pretrial matters may be referred to a magistrate judge to hear
and decide. Fed. R. Civ. P. 72(a). A party who fails to object to a magistrate
judge’s order in a nondispositive matter to the district court, however, waives that
issue and may not raise an objection to it on appeal to this Court. Id.; Smith v.
School Bd. Of Orange Cty., 487 F.3d 1361, 1365 (11th Cir. 2007) (“We have
concluded that, where a party fails to timely challenge a magistrate’s
nondispositive order before the district court, the party waived his right to appeal
those orders in this Court.”)).
Here, Johnson failed to object to, or seek review of, the magistrate judge’s
orders compelling her deposition, deferring discovery of financial documents, and
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denying her leave to amend her complaint. 4 Johnson therefore waived her right to
appeal those orders. See Fed. R. Civ. P. 72(a).
III. Grant of Summary Judgment
We review a district court’s grant of summary judgment de novo, viewing all
evidence and reasonable factual inferences drawn from it in the light most
favorable to the nonmoving party. See Crawford v. Carroll, 529 F. 3d 961, 964
(11th Cir. 2008). Summary judgment is appropriate where “there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a).
“Pro se pleadings are held to a less stringent standard than pleadings drafted
by attorneys and will, therefore, be liberally construed.” Tannenbaum v. United
States, 148 F.3d 1262, 1263 (11th Cir. 1998). Nevertheless, in order to survive
summary judgment, the nonmoving party must set forth specific facts showing
there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
249-50 (1986) (quotations omitted). A “mere existence of a scintilla of evidence”
cannot suffice to create a genuine issue of material fact. Id. at 252; see also
Stewart v. Booker T. Washington Ins., 232 F.3d 844, 850–51 (11th Cir. 2000)
4 Several circuits have concluded that an order denying a motion to amend is nondispositive for the purposes of Rule 72(a). See Daley v. Marriott Int’l, Inc., 415 F.3d 889, 893 n.9 (8th Cir. 2005); Cont’l Cas. Co. v. Dominick D’Andrea, Inc., 150 F.3d 245, 251 (3d Cir. 1998); Pagano v. Frank, 983 F.2d 343, 346 (1st Cir. 1993). We similarly evaluate Johnson’s motion to amend as nondisposititive. 8 Case: 19-11070 Date Filed: 09/04/2020 Page: 9 of 15
(“bare” and “self-serving” statements not enough to defeat summary judgment).
Rather, the nonmoving party must present enough evidence to allow a jury
reasonably to find in its favor. Id.
A. Misrepresentation of Copyright Infringement under 17 U.S.C. § 512(f)
The Digital Millennium Copyright Act (“DMCA”) relieves internet service
providers of liability for storing users’ content if, in addition to other requirements,
the provider “expeditiously” removes or disables content after receiving a
takedown notification from a copyright holder that it is infringing. 17 U.S.C.
§ 512(c). Section 512(c)(3)(A) outlines the content that such a takedown
notification must contain. § 512(c)(3)(A). Among other things, a takedown
notification must include:
(v) A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
and
(vi) A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
§ 512(c)(3)(A)(v), (vi) (emphasis added). If a party “knowingly materially
misrepresents” that the material or activity it complained of is infringing, it may be
subject to liability for “any damages, incurred by the alleged infringer by any
9 Case: 19-11070 Date Filed: 09/04/2020 Page: 10 of 15
copyright owner . . . who is injured by such misrepresentation.” Id. § 512(f).5
However, a party has not infringed on a copyright if their use constituted fair use
under 17 U.S.C. § 107. 6
5 Title 17, Section 512 provides in relevant part:
(f) Misrepresentations.—Any person who knowingly materially misrepresents under this section— (1) that material or activity is infringing, or (2) that material or activity was removed or disabled by mistake or misidentification, shall be liable for any damages, including costs and attorneys' fees, incurred by the alleged infringer, by any copyright owner or copyright owner's authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.
17 U.S.C. § 512(f). 6 Title 17, Section 107 provides:
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
17 U.S.C. § 107.
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While this Court has yet to consider a misrepresentation of copyright
infringement claim under § 512(f), one of the few circuits to analyze such a claim
has held that the takedown notice requirements contained in § 512(c)(3)(A)(v)
require copyright holders, before issuing the takedown notice, to consider whether
the potentially infringing material is a fair use. See Lenz v. Universal Music Corp,
815 F.3d 1145, 1151–1154 (9th Cir. 2016). And failure to consider fair use before
issuing a takedown notice constitutes a misrepresentation of copyright
infringement under § 512(f). Id. It also held that a copyright holder’s subjective
good faith belief that the use in question was unauthorized and was not fair use is a
complete defense to a § 512(f) misrepresentation claim. See 815 F.3d at 1154 (“If,
however, a copyright holder forms a subjective good faith belief the allegedly
infringing material does not constitute fair use, we are in no position to dispute the
copyright holder’s belief even if we would have reached the opposite conclusion”).
Johnson I is also instructive. 7 In Johnson I, this court found that “[t]he record
supports Defendants’ contention, credited by the district court, that they relied on
counsel to investigate whether there was a reasonable, good-faith basis to sue
7 Under the law-of-the-case doctrine, this Court’s prior decisions bars relitigation of issues that were decided either explicitly or by necessary implication in the same case. See This That And The Other Gift And Tobacco, Inc. v. Cobb Cty., Ga., 439 F.3d 1275, 1283 (11th Cir. 2006) (“[T]he law-of-the-case doctrine bars relitigation of issues that were decided either explicitly or by necessary implication..”). Here, although this appeal is technically based on a different complaint than Johnson I, the underlying facts, allegations, and parties are the same. As such, our decision in Johnson I necessarily implicates the appeal here. 11 Case: 19-11070 Date Filed: 09/04/2020 Page: 12 of 15
Johnson for copyright infringement.” Johnson I, 771 F. App’x at 995. Whether
NDCC misrepresented copyright infringement under § 512(f) thus turns on
whether NDCC had a reasonable good faith belief that Johnson was infringing on
their copyright when they sent the takedown notices.
In this case, NDCC’s counsel submitted affidavits testifying that they
conducted pre-filing investigations on whether Johnson’s posts infringed or if they
constituted fair use. The first counsel, Thomas Sadaka, investigated and ultimately
determined that “Johnson’s YouTube videos and website videos [] infring[ed]
Paula White Ministries’ copyrights” and “there was a good faith basis to bring a
lawsuit to protect [PMW’s] copyrights.” A second, different counsel, Vanessa
Braeley, stated that “[h]aving concluded that Ms. Johnson’s use was infringing and
was not a fair use, I submitted a Takedown Notice to YouTube on behalf of
PMW.” Thus, NDCC, by relying on their counsels’ investigations and opinions,
had a reasonable good faith belief that Johnson’s videos were infringing and did
not constitute fair use prior to filing the takedown notices. See Lenz, 815 F.3d at
1154.
Johnson’s evidence does not persuade us otherwise. For example, in her
deposition she stated that she knew NDCC did not consider fair use because if they
did, they would not have filed the takedown notifications. 8 This proffered
8 Among the reasons Jonson gave why NDCC did not consider fair use: 12 Case: 19-11070 Date Filed: 09/04/2020 Page: 13 of 15
evidence is a bare and speculative statement, not evidence. She failed to provide
any evidence that rises above a “mere existence of a scintilla of evidence” that
NDCC did not consider the fair use doctrine and that they did not have good faith
when they submitted the takedown notices and so are liable under § 512(f) for
misrepresenting a copyright claim. Anderson, 477 U.S. at 252. Therefore, the
district court did not err in granting summary judgment against Johnson on her §
512(f) misrepresentation claim.
B. Abuse of Process
“Under Florida law, which governs this claim, ‘[a]buse of process involves
the use of criminal or civil legal process against another primarily to accomplish a
purpose for which it was not designed.’” In re Fundamental Long Term Care,
Inc., 873 F.3d 1325, 1345–46 (11th Cir. 2017) (quoting Bothmann v. Harrington,
Question. “How do you know she failed to consider fair use?” Answer. “Well, I – because she filed a copyright infringement – well, as I stated, either she failed to [consider fair use] or she turned a blind eye.”
Question. “What facts do you have to support your claim that [NDCC’s attorney], in regard to the takedown notice in March of 2015, failed to consider the fair use doctrine?” Answer. “Because the videos were not infringing. I – I was keeping with U.S. Statute 17, 107. Now, I’m not saying I don’t – that’s what I’m saying; I don’t know. It’s either, or it could be a combination of the two because if she considered the fair use, she might not – should not have, anyway, filed a copyright infringement.”
Question. “Well . . . there could be another option, couldn’t there, Ms. Johnson? She could have considered the fair use doctrine and come to the conclusion that your use was not fair use. Isn’t that an alternative as well?” Answer. “Yes. But if she came to that conclusion, then I’d have to say that she doesn’t know much about copyright infringement then…” 13 Case: 19-11070 Date Filed: 09/04/2020 Page: 14 of 15
458 So.2d 1163, 1169 (Fla. 3d DCA 1984)). There are three elements for an abuse
of process claim:
(1) that the defendant made an illegal, improper, or perverted use of process; (2) that the defendant had ulterior motives or purposes in exercising such illegal, improper, or perverted use of process; and (3) that, as a result of such action on the part of the defendant, the plaintiff suffered damage.
S & I Invs. v. Payless Flea Mkt., Inc., 36 So. 3d 909, 917 (Fla. 4th DCA 2010). A
process is not abused unless it “is used to accomplish an immediate purpose other
than that for which it was designed.” Fundamental Long Term Care, 873 F.3d at
1346. Thus, “[w]here the process was used to accomplish the result for which it
was intended, ‘regardless of an incidental or concurrent motive of spite or ulterior
purpose,’ there is no abuse of process.” S & I Invs., 36 So. 3d at 917 (citing
Biondo v. Powers, 805 So.2d 67, 69 (Fla. 4th DCA 2002)).
Here, as found in Johnson I, “the record supports Defendants’ contention,
credited by the district court, that they relied on counsel to investigate whether there
was a reasonable, good-faith basis to sue Johnson for copyright infringement.”
Johnson I, 771 F. App’x at 995. Further, “[t]he record . . . also demonstrate[s] that
the court did not clearly err in concluding that NDCC’s primary motive for the
infringement suit was to protect their copyright.” Johnson, 771 F. App’x at 995
(11th Cir. 2019). Johnson failed to create a genuine issue of material fact and did
not present any evidence as to whether the prior copyright action against her was
14 Case: 19-11070 Date Filed: 09/04/2020 Page: 15 of 15
used to accomplish an immediate purpose other than to protect intellectual property
rights. Accordingly, the district court did not err in granting summary judgment
against Johnson on her abuse of process claim.
AFFIRMED.