Petition for Writ of Certiorari — Ronald Ragan, Jr., Petitioner v. Berkshire Hathaway Automotive, Inc.

Supreme Court briefJul 1, 2024

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No. 23-____

_______________________________________________

IN THE

Supreme Court of the United States

_______________________________________________

RONALD RAGAN, JR.,

Petitioner,

BERKSHIRE HATHAWAY AUTOMOTIVE, INC.,

Respondent.

_____________________________________________

On Petition for Writ of Certiorari

to the United States Court of Appeals for the Eighth Circuit

_____________________________________________

PETITION APPENDIX

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APPENDIX CONTENTS

Date

Description

Appendix Page

Feb. 2, 2024

Panel Opinion of the U.S. Court of Appeals for the

Eight Circuit

Mar. 10, 2022

District Court Order Granting Judgment on the

Pleadings

Oct. 11, 2022

District Court Order Denying Clarification and

Reconsideration

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United States Court of Appeals

For the Eighth Circuit

___________________________

No. 22-3355

___________________________

Ronald Ragan, Jr.

Plaintiff - Appellant

Berkshire Hathaway Automotive, Inc.

Defendant - Appellee

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Appeal from United States District Court

for the Western District of Missouri

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Submitted: December 13, 2023

Filed: February 2, 2024

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Before SMITH, Chief Judge, GRUENDER and GRASZ, Circuit Judges.

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GRASZ, Circuit Judge.

Ronald Ragan claims Berkshire Hathaway Automotive Inc. (BHA) copied his

single-page car dealership customer intake form (“Guest Sheet”) without his

permission. Under federal copyright law, this case boils down to whether the Guest

Sheet exhibits a sufficient degree of creativity. It does not, and for that reason, we

affirm.

Appellate Case: 22-3355

Page: 1

Date Filed: 02/02/2024 Entry ID: 5359693

I. Background

Ragan claims he created a document called the Guest Sheet that purportedly

helps car dealerships sell cars. The Guest Sheet consists of questions, prompts,

headings, fill-in-the-blank lines, and checkboxes. In 1999, the United States

Around 2000, Ragan claims the Van Tuyl Group, Inc., a privately-owned auto

dealership, copied and used the Guest Sheet. Ragan notified Van Tuyl of the

supposed infringement. In return, Van Tuyl’s insurer, American International

Group, Inc., sued Ragan, seeking a declaratory judgment that Van Tuyl was not

infringing on Ragan’s copyright and the copyright was void and unenforceable. That

lawsuit was later dismissed for lack of personal jurisdiction.

In 2015, BHA acquired Van Tuyl. Ragan claims that after acquiring Van

Tuyl, BHA continued to use the Guest Sheet. After Ragan complained, BHA

allegedly agreed to modify the form but continued using it. Ragan then commenced

this lawsuit, claiming copyright infringement. BHA moved for judgment on the

pleadings, asserting the Guest Sheet was not copyrightable. The district court1

granted BHA’s motion and entered judgment against Ragan. This appeal followed.

II. Analysis

On appeal, Ragan argues the district court erred by finding the Guest Sheet

uncopyrightable. We review a grant of judgment on the pleadings de novo, “viewing

all facts pleaded by the nonmoving party as true and granting all reasonable

inferences in favor of that party.” Henson v. Union Pac. R.R. Co., 3 F.4th 1075,

1080 (8th Cir. 2021) (quoting Clemons v. Crawford, 585 F.3d 1119, 1124 (8th Cir.

The Honorable Howard F. Sachs, United States District Judge for the

Western District of Missouri.

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Date Filed: 02/02/2024 Entry ID: 5359693

2009)). Where no dispute about the facts exists, we will address copyrightability as

a question of law. See Toro Co. v. R & R Prods. Co., 787 F.2d 1208, 1213 (8th Cir.

1986).

Ragan contends he owns the copyright to the Guest Sheet. The Copyright Act

extends copyright protection only to “original works of authorship.” 17 U.S.C. §

102(a). This originality requirement is imposed by the Constitution, as well as the

text of the Copyright Act itself. See Feist Publ’ns., Inc. v. Rural Tel. Serv. Co., 499

U.S. 340, 346 (1991) (“Originality is a constitutional requirement.”). To meet this

requirement, a work must be “independently created by the author (as opposed to

copied from other works), and . . . possess[] at least some minimal degree of

creativity.” Id. at 345.

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Although Ragan claims the Guest Sheet is an “elegant” form “distilled [from]

years of . . . experience,” it noticeably lacks the requisite originality of a

copyrightable work. It is a basic customer intake sheet containing fewer than 100

words seeking basic information:

Ragan claims the selection and arrangement of the words used as section

headings and question prompts make the Guest Sheet sufficiently original. But the

“mere selection” of words does not make a work copyrightable. Feist, 499 U.S. at

362–63 (explaining the act of selecting which words to include in a utilitarian work

is not enough to meet the originality requirement). The Guest Sheet still must exhibit

some degree of creativity, which it fails to do, mainly because it does not convey

information. See Kregos v. Associated Press, 937 F.2d 700, 708 (2d Cir. 1991) (“[A]

form that conveys no information and serves only to provide blank space for

recording information contains no expression or selection of information that could

possibly warrant copyright protection.”). See also Utopia Provider Sys., Inc. v. Pro-4A4

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Date Filed: 02/02/2024 Entry ID: 5359693

Med Clinical Sys., L.L.C., 596 F.3d 1313, 1323–24 (11th Cir. 2010) (holding a form

asking for basic information ranging from “name, date of birth, [and] sex” to “the

history of the present illness” and “medical and social history” did not convey

adequate information).

The Guest Sheet does not tell a car salesperson how to do his or her job; it is

merely a means of capturing and retaining information routinely considered when a

car salesperson seeks to sell a car. See id. at 1324. As the district court explained,

“the Guest Sheet in and of itself does nothing more than request basic information

which, at most, may simply assist a salesperson [to] tailor his or her sales pitch.”

Thus, we conclude the Guest Sheet is a form designed to record, not convey,

information. See, e.g., Bibbero Sys., Inc. v. Colwell Sys., Inc., 893 F.2d 1104, 1108

(9th Cir. 1990) (finding medical “superbills” uncopyrightable because superbills fail

to convey information). For these reasons, the Guest Sheet is not entitled to

Ragan also claims the district court ignored the statutory presumption of

Specifically, he argues judgment on the pleadings was improper because BHA put

forth no affirmative evidence—beyond the registered work—to rebut the prima facie

presumption of copyright validity. Ragan is correct that the Guest Sheet’s

registration certificate creates a statutory presumption of copyrightability. See 17

U.S.C. § 410(c) (“In any judicial proceedings the certificate of a registration made

before or within five years after first publication of the work shall constitute prima

facie evidence of the validity of the copyright and of the facts stated in the

certificate.”). But Section 401(c) does not impose any requirements on how a

defendant must meet its burden. See id. (“The evidentiary weight to be accorded

the certificate of a registration made thereafter shall be within the discretion of the

court.”) (emphasis added). Thus, the copyrightability of the Guest Sheet can be

determined by an examination of the Guest Sheet alone, as the district court

recognized. See, e.g., Carol Barnhart Inc. v. Econ. Cover Corp., 773 F.2d 411, 414

(2d Cir. 1985) (“Once defendant’s response to plaintiff’s claim put in issue whether

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. . . forms were copyrightable, [the district court] correctly reasoned that the ‘mute

testimony’ of the forms put him in as good a position as the Copyright Office to

decide the issue.”).

III. Conclusion

Because the Guest Sheet lacks the requisite originality for protection, we

affirm.

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Appellate Case: 22-3355

Page: 6

Date Filed: 02/02/2024 Entry ID: 5359693

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF MISSOURI

RONALD RAGAN, JR.,

Plaintiff,

BERKSHIRE HATHAWAY

AUTOMOTIVE, INC.,

Defendant.

)

Case No. 4:18-cv-01010-HFS

ORDER

In this copyright infringement action, defendant, Berkshire Hathaway

Automotive Inc. (“BHA”), has filed a motion for judgment on the pleadings

requesting that plaintiff’s claims be dismissed. (Doc. 92). Plaintiff, Ronald Ragan,

Jr., has filed a motion for leave to file Declarations as a matter of right, or to Confirm

Right to File. (Doc. 110). Both motions have been fully briefed, and are ready to be

ruled.

Background

Ragan states that he owns The Art of Sales, which provides recruitment,

hiring, and training services for automotive dealerships. (Doc. 19, First Amended

Case 4:18-cv-01010-HFS Document 111 Filed 03/10/22 Page 1 of 16

Complaint: ¶ 9). Ragan also states that he created an original work called the Guest

Sheet1 as a sales tool to assist automobile salespersons, which is a questionnaire

comprised of categories of questions including: (1) the guest’s personal information

including name, address, telephone number, and place of employment; (2) How

did you hear about us; (3) vehicle considered; (4) trade information; and (5) drive

home today budget. (Id: ¶¶ 11-12). Ragan states that the Guest Sheet was

registered on June 3, 1999, in the United States Copyright Office under Registration

Number TXu913-170. (Id: ¶ 13).

Ragan also states that on or about 2000, Van Tuyl, a privately-owned auto

dealership, copied and created an identical form as the Guest Sheet for use by its

automotive dealerships to assist in the sale of automobiles. (Id: ¶¶ 14, 29-30).

Ragan notified Van Tuyl of the alleged infringement, and on or about July 13, 2000,

American International Group, Inc. (AIG)2 filed suit against Ragan in the District of

Arizona seeking a declaratory judgment that Van Tuyl was not infringing on

plaintiff’s copyright – which AIG claimed was void, invalid and unenforceable. (Id:

¶¶ 33-34). On June 20, 2001, the lawsuit was dismissed for lack of personal

Attached as Exh. A.

Self-defined on their website as a leading global insurance organization.

Case 4:18-cv-01010-HFS Document 111 Filed 03/10/22 Page 2 of 16

jurisdiction, and although Ragan believed that Van Tuyl stopped using the Guest

Sheet, he alleges that usage continued. (Id: ¶¶ 35-37).

In the first quarter of 2015, BHA acquired Van Tuyl and renamed it Berkshire

Automotive Group, Inc. (BHA). (Id: ¶¶ 19). In August of 2017, Ragan learned that

BHA continued using the Guest Sheet, and after Ragan complained, BHA allegedly

agreed to modify the form, but continued using it. (Id: ¶¶ 41-43). Ragan then

commenced this one-count action asserting copyright infringement in violation of

17 U.S.C. §§ 501 et seq (the Copyright Act).

Standard of Review

When considering a motion for judgment on the pleadings under Fed.R.Civ.

12(c), all factual allegations set out in the complaint must be accepted as true, and

construed in the light most favorable to the plaintiff, drawing all inferences in his

favor. Judgment on the pleadings is appropriate only when there is no dispute as

to any material facts and the moving party is entitled to judgment as a matter of

law. Ashley county, Ark. v. Pfizer, inc., 552 F.3d 659, 665 (8th Cir. 2009); Wishnatsky

v. Rovner, 433 F.3d 608, 610 (8th Cir. 2006).

A motion for judgment on the pleadings is reviewed under the same

standard as a motion to dismiss under Fed.R.Civ.P. 12(b)(6) in that all material facts

are alleged as true in order to determine if the complaint states a claim to relief

Case 4:18-cv-01010-HFS Document 111 Filed 03/10/22 Page 3 of 16

that is plausible on its face. Baude v. City of St. Louis, 476 F.Supp.3d 900 (E.D.Mo.

2020); citing, Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A claim has facial

plausibility when the plaintiff pleads factual content that allows the court to draw

the reasonable inference that the defendant is liable for the misconduct alleged.

Id. Although the complaint need not contain detailed factual allegations, it must

contain sufficient factual allegations to raise a right to relief beyond the speculative

level. Id; citing, Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

Discussion

The Copyright Act provides that copyright protection subsists in original

works of authorship fixed in any tangible medium of expression, now known or

later developed, from which they can be perceived, reproduced, or otherwise

communicated, either directly or with the aid of a machine or device. Moore v.

Kroger Company, 2014 WL 825428 *3 (N.D.Ca.); citing, 17 U.S.C. § 102(a). The sine

qua non of copyright is originality, and to qualify for copyright protection, a work

must be original to the author. Id. In other words, the work must have been

independently created by the author (as opposed to copied from other works), and

it must possess at least some minimal degree of creativity. Id.

To establish a claim for copyright infringement, a plaintiff must demonstrate:

(1) ownership of the allegedly infringed work, and (2) copying of constituent

Case 4:18-cv-01010-HFS Document 111 Filed 03/10/22 Page 4 of 16

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elements of the work that are original. Id. Plaintiff claims ownership of the Guest

Sheet and submits a copy of its registration with the United States Copyright Office

on June 3, 1999, under registration number TXu913-170. To that end, Ragan’s claim

finds support in Moore, which held that with respect to the first requirement, a

Sys. Inc. v. Colwell Sys. Inc., 731 F.Supp. 403 (N.D.Ca. 1988)(sometimes referred to

as “Bibbero 1”); see also, 17 U.S.C. § 401(c).

Presumptive validity is rebuttable, but requires a very high -but not

insuperable- burden of proof to overcome the presumption. Consequently, courts

frequently deny copyright protection for authors who have been issued a

certificate of registration. Moore, at * 3.

With this in mind, BHA argues that the copyright of the Guest Sheet is invalid

under the Blank Form Doctrine. Initially known as the “blank forms rule,” the

Supreme Court held that forms consisting of ruled lines and labeled columns

displaying how a certain bookkeeping system should be implemented could not be

the subject of copyright. Moore, at, * 3 -*4; citing, Baker v. Selden, 101 U.S. 99, 107

(1879). The blank forms rule was subsequently codified at 37 C.F.R. § 202.1(c) to

include various blank forms such as time cards, graph paper, account books, diaries,

bank checks, scorecards, address books, report forms, order forms and the like – in

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other words, forms that are “ ‘designed for recording information and do not in

themselves convey information’ “. Moore, at *4.

On the other hand, it has been held that where text is integrated with blank

forms, the forms have explanatory force because of the accompanying

copyrightable textual material. Moore, at *5; citing, Bibbero Sys., Inc. v. Colwell

Sys., Inc., 893 F.2d 1104, 1108 (9th Cir. 1990)(sometimes referred to as “Bibbero II”).

For example, combination of instruction book and blank forms constituting an

integrated work has been held to be copyrightable as well as forms with

inseparable instructions. Bibbero II, 893 F.2d at 1106-07. Unless the instructions are

far too simple to be copyrighted as text in and of themselves. Id.

In Utopia Provider Systems, Inc. v. Pro-Med Clinical Systems, L.L.C., 596 F.3d

1313 (11th Cir. 2010), two hospital employees, McHale and Plummer, created a

prototype template used to develop a system of templates for use in hospital

emergency rooms, named “ED Maximus.” Id, at 1316. McHale and Plummer formed

their own company “Utopia” to own and manage the rights in ED Maximus, that

was later submitted to the United States Copyright Office for issuance of a

certificate of Registration, which was received as a compilation of terms. Id, at

1316, -18. In the interim, McHale and Plummer entered into an agreement with

defendant Pro-Med Clinical Systems, L.L.C. “Pro-Med” giving it an exclusive royalty-

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bearing license to sell, market, service, distribute and otherwise use its rights

associated with the ED Maximus charts. Id, at 1316-17. The parties also agreed that

Pro-Med could use the licensed materials from ED Maximus to formulate a product

called Pro-Med Maximus, and would owe Utopia 50% of revenue collected from

the sale, licensing or other distribution of the Pro-med Maximus. Id, at 1317.

A dispute arose a few years later, and McHale and Plummer filed suit against

Pro-Med for, among other things, copyright infringement; in its answer, Pro-Med

asserted an affirmative defense claiming that ED Maximus was not copyrightable

under the Blank Form doctrine. Id, at 1318. The district court agreed finding that

ED Maximus was a series of blank forms which did not convey information. Id, at

1319.

The district court was affirmed on appeal, and in reliance on Feist Publ’ns,

Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S. 340, 345 (1991), the Eleventh Circuit noted

that the sine qua non of copyright is originality. Utopia, 596 F3d, at 1319. As such,

and in reliance on 17 U.S.C. § 102(b), copyright protection does not extend to

anything in the work of authorship that constitutes an idea, procedure, process,

system, method of operation, concept, principle, or discovery, regardless of the

form in which it is described, explained, illustrated, or embodies in such work. Id,

at 1320. The court further noted, as held in its prior decision in John H. Harland Co.

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v. Clarke Checks, Inc., 711 F.2d 966, 971, that examples of blank forms included

time cards, graph paper, account books, diaries, bank checks, scorecards, address

books, report forms, order forms and the like, which are designed for recording

information and do not in themselves convey information. Utopia, at 1320.

In reviewing the ED Maximus form, the court found that was a set of charts

for physician use to record a patient’s medical history and present symptoms, and

prior to completion, did not convey any information about the patient; and the only

way the forms could convey information would be if they conveyed information to

the doctors about what questions should be asked of the patient. Id, at 1320-21.

The Eleventh Circuit found that the primary question regarding the

copyrightability of blank forms rested with whether the challenged form “conveys

information,” and looked to the Second Circuit’s decision in Kregos v. Associated

Press, 937 F.2d 700 (1991). In Kregos, the court explained that blank forms do not

convey information if the headings are so obvious that their selection cannot be

said to satisfy even minimal creativity, not only because it contains blanks, but

because its selection of headings is totally uninformative. Utopia, at 1321-22; citing,

Kregos, at 708-09. As opposed to a scorecard or diary that contains a group of

headings whose selection (or possibly arrangement) displays cognizable creativity,

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then, the author’s choice of those headings would convey to users the information

that this group of categories was something out of the ordinary. Id.3

In employing guidance from the court in Kregos, the Eleventh Circuit

considered whether the selection of information requested by the ED Maximus

form or its arrangement was informative or out of the ordinary, and found that the

forms called for the same information that any responsible physician would ask a

patient with the given ailment. Utopia, at 1322. The first section on the forms were

the same regardless of the ailment, calling for personal information such as the

patient’s name, date of birth, sex, and chief complaint. Id. The court also considered

whether the ED Maximus form conveyed information, and found that the form did

not prompt the physician to adequately care for the patient, but rather prompts

the physician to capture the information that derives from providing the care,

therefore the forms did not convey information before filled out nor tell an

emergency physician how to do his job. Id, at 1324. Tellingly, while being deposed,

McHale (one of the plaintiffs in the case) agreed that the form was a “means for

capturing and retaining information.” Id. After an independent review of the forms

For example, the court in Kregos found that a baseball scorecard with columns headed “innings” and lines

headed “players” and a travel diary with headings for “cities,” “hotels,” and “restaurants” would be considered

examples of works with obvious headings, conversely, works with headings that convey information, depending on

the suggestions of items to record and their arrangement, would be books intended to record the events of a

baby’s first year or a European trip. Utopia, 596 F.3d at 1322.

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and uncontradicted evidence gleaned through depositions, the court concluded

that the selection or arrangement of terms in the forms were not original and did

not convey information. Id.

Here, the Guest Sheet asks for personal information such as name, address,

telephone number, and place of work. (Doc. 19-1). It then incorporates headings

requesting additional information such as, How did you hear about us; Vehicle

Considered; trade Info.; and Drive Home Today Budget. (Id).

In his response to BHA’s motion, Ragan claims that in Ragan v. Vinsolutions,

Inc., 2:20-cv-2225-TC-JPO (D.Kan. May 1, 2020), Judge Crouse deferred to the

administrative expertise of the Copyright office, and rejected BHA’s blank form

argument. (Doc. 101, Opp. p 10). A more accurate reading of Judge Crouse’s

statements expressed during a status conference indicates that while the blank

form doctrine may indeed defeat Ragan’s claim, in light of the prima facie

presumption of validity for a registered copyright, the better course on a 12(b)(6)

motion would be to permit further discovery (Doc. 102-2, pp. 5-6).

This tracks with my prior reluctance to rule against Ragan at the early stage

of the case. (Doc. 35). I noted however that under Baker a document containing

space for answering questions (referred to as “headings”), would not be

copyrightable due to an underlying rationale seemed to be that simply stated

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questions are not “expressive,” at least in circumstances where spaces for

answering are created, thus making the answers (by persons other than the creator

of the document) the “expressive” aspect of the paper. (Doc. 35, p. 13).

Documents thus might also occasionally become expressive in the questions

asked, but the routine presentation, as in Baker and probably in this case, would

lose copyrightability because they are not expressive.4 (Id, p. 14). On this rationale,

defendant may ultimately prevail on the “Blank Form” issue it raises. But it would

be premature to dismiss the amended complaint on the ground suggested, without

more briefing. Thus, the parties were invited to seriously brief the pertinent Blank

Form issues on summary judgment or on a motion for judgment on the pleadings.

(Id).

Ragan argues that issuance of copyright registration of the Guest Sheet

means that the Copyright Office did not consider it barred under the Blank Forms

noted in § 202.1(c), and is therefore sufficient to defeat dismissal of his claim. (Doc.

101, Opp. pp. 11-13).5 While a certificate of registration from the United States

In the words of Circular 33, simple questions would seem to qualify for Blank Form use as “short phrases that

identify the content that should be recorded in each field or space. Blank forms that are designed for recording

information and do not themselves convey information are uncopyrightable.

The Blank forms listed include time cards, graph paper, account books, diaries, bank checks, scorecards, address

books, report forms, order forms and the like, which are designed for recording information and do not in

themselves convey information. § 202.1(c).

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other evidence in the record casts doubt on the question, validity is not to be

assumed. Utopia, 596 F.3d, at 1319.

Ragan also argues that the Guest Sheet is not excluded from legitimate

copyrightability because it “conveys information” as part of a sales-training

process. (Id, p. 8). While the Guest Sheet may have been used “as a sales tool to

assist automobile salespersons” (Doc. 19: First Amended Complaint ¶¶ 11-12),

there is no evidence that, prior to being filled out, it conveyed any information to

the salesperson about the customer; and could very well constitute a “process,

system or method of operation” in an automobile dealership which would then not

enjoy copyright protection. Utopia, at 1320; citing, 37 C.F.R. § 202.1(c)(the forms

are designed for recording information, and before they are filled out, do not

convey any information about a patient). In considering whether the ED Maximus

form conveyed information, and the court found that the form did not prompt the

physician to adequately care for the patient, but rather prompts the physician to

capture the information that derives from providing the care, therefore the forms

did not convey information before filled out nor tell an emergency physician how

to do his job. Id, at 1324.

Although plaintiff claims the Guest Sheet is an “original” work, the questions

asked are not unique, and seem to be routine information an automobile

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salesperson would seek to elicit from a customer visiting a showroom or car lot.

See Utopia, where the court found that the selection and arrangement of the terms

used in the templates did not convey information and was not sufficiently original.

Id. at 1322. The Utopia court reasoned that if the correct way to perform an action

is well established in a profession, it is unlikely that a description of how to perform

that action can be original. Id. The court further reasoned that the arrangement of

the terms used was not informative or out of the ordinary, and found that the forms

called for the same information that any responsible physician would ask a patient

with the given ailment. Utopia, at 1322.

The first section on the forms were the same regardless of the ailment,

calling for personal information such as the patient’s name, date of birth, sex, and

chief complaint. Id; see also, Clean Crawl, Inc. v. Crawl Space cleaning Pros, Inc.,

where the court held that a blank form that merely contains words, short phrases,

or a de minimus amount of text does not satisfy the requirement of authorship

because it does not qualify as a literary work, a pictorial work, a graphic work, or

any of the other categories of works listed in 17 U.S.C. § 102(a). 364 F.Supp.3d

1194, 1215 (W.D.Wa.), 11 Nimmer on copyright 313 (2018); citing, Registration of

Claims to Copyright, 77 Fed. Reg. 37,605, 37,607 (June 22, 2012). In

acknowledgment of the Ninth Circuit’s interpretation of the rule, the court held

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that a blank form’s inclusion of some categories of information and not others does

not make it copyrightable, nor does the fact that, as alleged here by Ragan,

considerable effort and creativity went into designing it necessarily make it

copyrightable. Clean Crawl, 364 F.Supp.3d at 1215; citing, Bibbero, 893 F.2d at

1107, 1108 n.1.

The arguments posited by Ragan here are unpersuasive and do not

sufficiently address the issue of the copyrightability of the Guest Sheet.

Notwithstanding plaintiff’s argument to the contrary, the Guest Sheet in and of

itself does nothing more than request basic information which, at most, may simply

assist a salesperson tailor his or her sales pitch. Thus, it is not copyrightable because

it is a blank form designed for recording information that does not convey

information and/or inseparable instructions. Moore, at *5. In sum, there is no

genuine issue of material fact as to the Guest Sheet’s copyrightability, and BHA is

entitled to judgment as a matter of law.

Finally, Ragan has filed a motion seeking confirmation that he can file

declarations as a matter of right, or alternatively, an order deeming the

declarations attached to the motion as filed. Ragan claims there is a right under

Rule 6(c)(2) to submit declarations “in opposition” to a dispositive motion (Doc.

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106, p. 13); however, Ragan did not file the declarations with his opposition brief,

instead, he waited until well over two months later.

Ragan also argues that he requested oral argument in his opposition brief,

thereby permitting submission of the declarations at any time prior to 7 days before

the hearing. relying on, Costal States Gas Corp. v. Dept. of Energy, 644 F.2d 969 (3rd

Cir. 1981).

On appeal, the Third Circuit Costal found that the district court erred in

declining to consider the 400-page Vaughn index6 and the accompanying affidavit

submitted by the Dept. of Energy one day before the scheduled hearing. The court

reached this conclusion because the Vaughn index, which requires factually

grounded and specifically-indexed justifications for withheld documents, was

developed as a preferred device for creating a more balanced and effective

relationship between the parties and the court. Costal, 644 F.2d at 984.

The facts in Costal are distinguishable, and thus unhelpful to Ragan’s

argument. Here, though requested, oral argument has not been scheduled, and it

is within the court’s discretion to grant oral argument. Tokio Marine Am. Ins. Co. v.

Professional Svs. Ind. Inc., 2020 WL 7647555 (W.D.Mo.); Local Rule 7.0(b) (the court

A Vaughn index is a procedural tool developed in Vaughn v. Rosen, 484 F.2d 820, 826-28 (D.C.Cir. 1973), to

enable a district court to evaluate allegations of exemption advanced by a governmental agency, and to assure

that claimed exemptions are justified under 5 U.S.C. § 552(a)(6)(A) “the Act.” Costal, at 972.

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may, but need not order and consider oral argument). Consequently, Ragan’s

purported right to file declarations at least 7 days before a hearing is without merit.

If not as a matter of right, Ragan requests that this court liberally construe

Local Rule 15.1(a) and seeks an order that the declarations as attached to his

motion be deemed filed. The blank form rule as an exception to copyrightability

was first raised by BHA in its initial dismissal motion (Doc. 21) and has been pending

in this matter for well over two years, and the scheduling order has been amended

several times extending the period for discovery. Consideration of these procedural

events, as well as Ragan’s arguments noted above fail to support a finding of good

cause or excusable neglect. Thus, Ragan’s motion will be denied.

Accordingly, defendant’s motion for judgment on the pleadings (Doc. 92) is

GRANTED. It is further

ORDERED that plaintiff’s motion for leave to file declarations (Doc. 105) is

DENIED.

/s/ Howard F. Sachs

Honorable Howard F. Sachs

UNITED STATES DISTRICT JUDGE

Dated: March 10, 2022

Kansas City, Missouri

Case 4:18-cv-01010-HFS Document 111 Filed 03/10/22 Page 16 of 16

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IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF MISSOURI

RONALD RAGAN, JR.,

Plaintiff,

BERKSHIRE HATHAWAY

AUTOMOTIVE, INC.,

Defendant.

)

Case No. 4:18-cv-01010-HFS

ORDER

Presently pending before the court is plaintiff’s motion for clarification and reconsideration

(Doc. 112), and motion for leave to file a document under seal (Doc. 120). Defendant has filed a

motion for an order entering final judgment (Doc. 115). Plaintiff seeks relief pursuant to Federal

Rules of Civil Procedure 54(b), 59(e), and/or 60(b). (Doc. 113, p. 5).

Without reciting the facts in this case, suffice it to say that plaintiff continues to seek a

ruling that his Guest Sheet is copyrightable. The issue has been repeatedly considered, and after

careful review of the many briefings submitted in this inordinately lengthy proceeding, I found

that the questions solicited on plaintiff’s Guest Sheet were not unique, but, rather, appeared to be

routine information an automobile salesperson would seek to elicit from a customer visiting a

showroom or car lot. Citing, Utopia (Doc. 111, Order dated Mar. 10, 2022). Consequently,

defendant’s motion for judgment on the pleadings was granted. (Id).

Plaintiff seeks clarification of that Order, claiming that a ruling was not made as to whether

copyrightability can be decided as a matter of law as argued by defendant, or is a mixed question

of fact and law to be decided by a jury. In the event the ruling was decided as a matter of law,

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plaintiff claims that it would be determinative of an appeal to the U.S. Court of Appeals. And, if

the ruling was decided as a mixed question, plaintiff seeks reconsideration of the ruling by granting

him leave to amend to present new evidence.

As noted above, plaintiff seeks relief in the form of “clarification and reconsideration”

under Federal Rules of Civil Procedure 54(b), 59 (e), and/or 60(b).1 The Federal Rules do not allow

for motions to clarify, and, the court must construe the motion according to the type of relief

sought. Schoenbaum v. E.I. DuPont de Nemours and Co., 2007 WL 3331291 *1 (E.D.Mo.). Thus,

the question of reconsideration pursuant to Fed.R.Civ.P. 60(b) will be addressed below.

Whatever the precise authority, courts do sometimes entertain motions identified as

motions for clarification. G2 Database Marketing, Inc. v. Stein, 2020 WL 6484788 * 3 (S.D.Iowa).

However, the Eighth Circuit Court of Appeals takes a dim view of motions for clarification that

simply attempt to relitigate already decided issues, concluding that they may warrant sanctions for

unreasonably and vexatiously multiplying the proceedings and wasting everyone’s time. G2,

citing, Vallejo v. Amgen, Inc., 903 F.3d 733, 749 (8th Cir. 2018).

There is sound reasoning for the Eighth Circuit’s unflattering opinion of clarification

motions. Here, plaintiff has not cited any relevant authority, and his reliance on Burton v. Johnson,

Rule 54(b) provides that any order or other decision, however, designated, that adjudicates fewer than all the

claims or rights and liabilities of fewer than all the parties may be revised at any time before the entry of a judgment

adjudicating all the claims and all the parties’ rights and liabilities. Avery v. E&M Services, LLC, 2022 WL 4395480

*4 (D.N.D). The exact standard applicable to granting such a motion is not clear, though it is typically held to be less

exacting than a motion under Rule 59(e), which is in turn less exacting than the standards enunciated in Rule 60(b).

Id.

Fed.R.Civ.P. 59(e) was adopted to clarify a district court’s power to correct its own mistakes in the time

period immediately following entry of judgment, Innovative Home Health Care, Inc. v. P.T.-O.T. Associates of the

Black Hills, 141 F.3d 1284, 1286 (8th Cir. 1998)(such motions cannot be used to introduce new evidence, tender new

legal theories, or raise arguments which could have been offered or raised prior to entry of judgment); and, it must be

filed within ten days of the entry of judgment. Schoenbaum v. E.I. DuPont de Nemours and Co., 2007 WL 3331291

*2 (E.D. Mo.).

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975 F.2d 690 (10th Cir. 1992), is unpersuasive and does not support his argument for clarification.2

Contrary to plaintiff’s contention, the ruling in this case is not ambiguous. The ruling states, quite

clearly, that the Guest Sheet was not copyrightable because it was designed for recording

information that does not convey information and/or inseparable instructions. (Doc. 111, Order

dated March 10, 2022, p. 14). Finding no genuine issue of material fact as to its copyrightability,

I held that defendant was entitled to judgment as a matter of law. (Id). Plaintiff’s argument to the

contrary is therefore disingenuous.

Reconsideration

There is no doubt that the crux of plaintiff’s motion revolves around the purported copyrightability

of the Guest Sheet, and he seeks reconsideration so that he can amend his pleadings to include the

deposition of Peter DeDecker, an automotive sales manager who began his 40-year career in the

automotive business with BHA. The record indicates that in a case pending before the District

Court for the District of Kansas, Ragan v. VinSolutions, Inc., 20-cv-02222-DDC-JPO, on July 8,

2021, DeDecker was noticed as a witness for defendant. (Doc. 114-2, p. 2). Through the

declaration of his counsel, Andrew Grimm, plaintiff claims that much of DeDecker’s deposition

testimony (taken the day after the ruling in this case) in the Kansas case is “highly important to

this case;” primarily due to his long career in automotive sales and training and prior employment

with Van Tuyl – which was later acquired by defendant (Doc. 112-1, p. 2). According to plaintiff,

Plaintiff cites Burton v. Johnson, 975 F.2d 690 (10th Cir. 1992), a habeas action, in which the petitioner challenged

her state court conviction for first-degree murder. Id, at 691. In an Order dated December 27, 1989, the district court

granted the petition, and ordered that the petitioner be released unless a new trial is commenced within 90 days; both

parties appealed the court’s determination, and litigation continued in the matter. Id, 691-93. The Eighth Circuit

ultimately found that the district court’s Order was “ambiguous” as to the intended effect of the expiration of the 90day period, and it was unclear what type of “release” the district court intended in ordering that the petitioner “be

released unless a new trial is commenced within 90 days.” Id, at 694. Thus, the matter was remanded to the district

court for interpretation and clarification of the Order, pursuant to Fed.R.Civ.P. 60(a). Id.

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DeDecker acknowledged, among other things, that the Guest Sheet “was a novel, and original,

expression of a general idea for a customer-interview sheet.” (Id). Contrary to plaintiff’s

contentions, DeDecker’s opinion is not dispositive on the issue of copyrightability of the Guest

Sheet; rather, it is just that, the opinion of another employee in the automotive sales venue. Plaintiff

also claims that upon learning of the DeDecker testimony in the Kansas case, for months he

attempted to schedule DeDecker’s deposition, but defendant employed delaying tactics until a day

after the ruling was issued in this case. (Doc. 122, p. 13).

Giving plaintiff the benefit of the doubt that the ruling granting defendant’s motion for

judgment on the pleadings was not a final judgment, plaintiff’s motion for reconsideration will not

be held untimely. Williams v. Employers Mutual Casualty Company, 845 F.3d 891, 898 (8th Cir.

2017)(a district court decision is not final, and thus not appealable, unless there is some clear and

unequivocal manifestation by the trial court of its belief that the decision made, so far as the court

is concerned, is the end of the case). And, the motion will be considered as a motion seeking relief

under Rule 60(b).

Motions for reconsideration are nothing more than Rule 60(b) motions when directed at

non-final orders. Elder–Keep v. Aksamit, 460 F.3d 979, 984 (8th Cir.2006). Rule 60(b) provides

that a court may reconsider a prior ruling for one of the following reasons:

(1) mistake, inadvertence, surprise, or excusable neglect;

(2) newly discovered evidence that, with reasonable diligence, could not have been discovered in

time to move for a new trial under Rule 59(b);

(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by

an opposing party;

(4) the judgment is void;

(5) the judgment has been satisfied, released or discharged; it is based on an earlier judgment that

has been reversed or vacated; or applying it prospectively is no longer equitable; or

(6) any other reason that justifies relief.

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Rule 60(b) relief is an “extraordinary remedy” that is justified only in “exceptional

circumstances,” Prudential Ins. Co. of America v. Nat'l Park Med. Ctr., Inc., 413 F.3d 897, 903

(8th Cir.2005), and “[e]xceptional circumstances are not present every time a party is subject to

potentially unfavorable consequences as a result of an adverse judgment properly arrived at.”

Atkinson v. Prudential Prop. Co., 43 F.3d 367, 373 (8th Cir.1994) (in the context of a motion under

Rule 60(b)(6) relief will only be granted where the “exceptional circumstances have denied the

moving party a full and fair opportunity to litigate his claim and have prevented the moving party

from receiving adequate redress.” Harley v. Zoesch, 413 F.3d 866, 871 (8th Cir.2005). As such, a

Rule 60(b)(6) motion that does nothing more than attempt to reargue issues already decided should

be denied. Broadway v. Norris, 193 F.3d 987, 989–90 (8th Cir.1999) (in their motion for

reconsideration, defendants did nothing more than reargue, somewhat more fully, the merits of

their claim of qualified immunity. This is not the purpose of Rule 60(b)(6).... It is not a vehicle for

simple reargument on the merits.).

That is precisely what plaintiff attempts to do here; present cumulative argument – by way

of the DeDecker deposition - on an issue that has been repeatedly reviewed by this court, and found

to be lacking support for plaintiff’s argument that his Guest Sheet does not fall within the “blank

form” exception to copyrightability.

Accordingly, plaintiff’s motions for reconsideration (Doc. 112) and to seal document (Doc.

120) are DENIED. It is further

ORDERED that defendant’s motion to enter final judgment (Doc. 115) is GRANTED. The

judgment in this case.

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/s/ Howard F. Sachs

Honorable Howard F. Sachs

UNITED STATES DISTRICT JUDGE

Dated: October 11, 2022

Kansas City, Missouri

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.