Bynum Motion For Defendant Reconsideration

Case 4:17-cv-00181 Document 131 Filed on 05/11/20 in TXSD Page 1 of 23
UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
MICHAEL J. BYNUM and CANADA

HOCKEY LLC d/b/a EPIC SPORTS,
Plaintiffs, Civil Action No. 4:17-cv-00181
vs.
TEXAS A&M UNIVERSITY ATHLETIC Jury Trial Demanded

DEPARTMENT; TEXAS A&M
UNIVERSITY 12TH MAN FOUNDATION;
Hearing Requested
BRAD MARQUARDT, in his individual
capacity; ALAN CANNON, in his individual
capacity; and LANE STEPHENSON, in his
individual capacity,
Defendants.
MOTION FOR RECONSIDERATION AND/OR MOTION FOR LEAVE TO FILE A

SECOND AMENDED COMPLAINT
TABLE OF CONTENTS
TABLE OF AUTHORITIES .......................................................................................................... ii
STATEMENT OF THE ISSUES TO BE RULED UPON BY THE COURT AND

STANDARD OF REVIEW ............................................................................................................ 1
SUMMARY OF THE ARGUMENT ............................................................................................. 3
PROCEDURAL HISTORY............................................................................................................ 3
ARGUMENT .................................................................................................................................. 4
I. Plaintiffs’ SAC Addresses the Issues Raised in the Court’s Dismissal Order. ....... 4
II. Plaintiffs’ Amendments Satisfy the Five Factors Courts Consider to Grant
Leave to Amend. ..................................................................................................... 6
III. Plaintiffs Seek to Preserve Their Original Claims on Appeal. ............................. 13
CONCLUSION ............................................................................................................................. 14
CERTIFICATE OF CONFERENCE............................................................................................ 17
CERTIFICATE OF SERVICE ..................................................................................................... 18
i
TABLE OF AUTHORITIES
CASES PAGE(S)
In re Aimster copyright litigation,

334 F.3d 643 (7th Cir. 2003) ...................................................................................................10
Alvarado v. Texas Health & Human Servs. Comm’n,

No. 5:19-CV-0106-JKP, 2019 WL 6876499 (W.D. Tex. Dec. 17, 2019) .................................8
Amaya v. Roadhouse Brick Oven Pizza, Inc.,

285 F.R.D. 251 (E.D.N.Y. 2012) .............................................................................................13
Austin v. Kroger Texas, L.P.,

864 F.3d 326 (5th Cir. 2017) .....................................................................................................2
Bennett v. Pippin,
74 F.3d 578 (5th Cir. 1996) .....................................................................................................14
Bryant v. Military Dep’t,

2005 WL 8171753 (S.D. Miss. Dec. 12, 2005) .......................................................................14
Crawford-El v. Britton,
523 U.S. 574 (1998) ...................................................................................................................8
Dussouy v. Gulf Coast Inv. Corp.,

660 F.2d 594 (5th Cir. 1981) .................................................................................................6, 7
Fonovisa, Inc. v. Cherry Auction, Inc.,

76 F. 3d 259 (9th Cir. 1996) ....................................................................................................11
Global-Tech Appliances, Inc. v. SEB SA,

131 S. Ct. 2060 (2011) .............................................................................................................10
Goldin v. Bartholow,
166 F.3d 710 (5th Cir. 1999) ...................................................................................................12
Gray v. City of Chicago,

159 F. Supp. 2d 1086 (N.D. Ill. 2001) .....................................................................................12
Great Plains Tr. Co. v. Morgan Stanley Dean Witter & Co.,
313 F.3d 305 (5th Cir. 2002) .....................................................................................................9
Jacobs v. City of Chicago,

215 F.3d 758 (7th Cir. 2000) .....................................................................................................8
Jacobsen v. Osborne,
133 F.3d 315 (5th Cir. 1998) .............................................................................................12, 13
ii
Jones v. Robinson Prop. Grp., L.P.,

427 F.3d 987 (5th Cir. 2005) .....................................................................................................6
Lyn-Lea Travel Corp. v. Am. Airlines, Inc.,

283 F.3d 282 (5th Cir. 2002) .....................................................................................................6
Mayeaux v. La. Health Serv. & Indem. Co.,

376 F.3d 420 (5th Cir. 2004) .................................................................................................6, 7
N. Texas Opportunity Fund L.P. v. Hammerman & Gainer Int’l, Inc.,

2016 WL 6948469 (N.D. Tex. Apr. 25, 2016) ........................................................................14
Oppenheimer v. Deiss,
No. A-19-cv-423-LY, 2019 WL 6525188 (W.D. Tex., Dec. 3, 2019) ..............................10, 11
Reitz v. City of Abilene,

No. 1:16-CV-0181-BL, 2017 WL 3046881 (N.D. Tex. May 25, 2017) ....................................8
Schultea v. Wood,
47 F. 3d 1427 (5th Cir 1995) .....................................................................................................8
Stripling v. Jordan Prod. Co., LLC,

234 F.3d 863 (5th Cir. 2000) ...................................................................................................10
Superior Offshore Int’l, Inc. v. Schaefer,

2012 WL 1551703 (S.D. Tex. Apr. 30, 2012) .........................................................................14
Swanson v. R.R. Com’n of Texas,

No. CIV.A. C-11-80, 2011 WL 2039601 (S.D. Tex. May 24, 2011) ....................................2, 7
Tow v. Amegy Bank N.A.,

498 B.R. 757 (S.D. Tex. 2013) ..................................................................................................9
UMG Recordings, Inc. v. Bertelsmann AG,

222 F.R.D. 408 (N.D. Cal. 2004) .............................................................................................11
United States v. Georgia,

546 U.S. 151 (2006) ...................................................................................................................6
United States v. Renda,

709 F.3d 472 (5th Cir. 2013) .....................................................................................................2
Warnock v. Pecos County, Texas,

88 F.3d 341 (5th Cir. 1996) .......................................................................................................7
Williams v. City of Denton, Tex.,

2020 WL 1158610 (E.D. Tex. Mar. 10, 2020) ..............................................................3, 4, 5, 6
iii
Wilson v. First Houston Invs. Corp.,

566 F.2d 1235 (5th Cir. 1978),
rev’d on other grounds, 444 U.S. 959 (1979) ..........................................................................14
Winslow v. Harris Cty.,

No. CV H-07-767, 2007 WL 9754606 (S.D. Tex. May 31, 2007) ............................................8
RULES
Fed. R. Civ. P. 15(a)(2) ................................................................................................................2, 6
OTHER AUTHORITIES
18A FED. PRAC. & PROC. JURIS. § 4436 (2d ed.) .............................................................................7
8-41 MOORE’S FED. PRAC. CIV. § 41.50 (2017) ...............................................................................7
2 William F. Patry, Copyright Law & Practice 1147 ....................................................................11
6 Wright & Miller, Federal Prac. & Procedure § 1476 (1971) ....................................................14
iv
STATEMENT OF THE ISSUES TO BE RULED UPON BY THE COURT AND

STANDARD OF REVIEW
Plaintiffs Michael J. Bynum (“Bynum”) and Canada Hockey LLC d/b/a Epic Sports
(collectively “Plaintiffs”) file this opposed Motion for Reconsideration and/or Seeking Leave to
File a Second Amended Complaint (the “SAC,” attached hereto as “Exhibit A”): (i) to clarify that
Plaintiffs state claims for damages against Texas A&M University (“TAMU”) for direct and
secondary copyright infringement, violations of the Digital Millennium Copyright Act (“DMCA”),
and for constitutional violations1 and (ii) to plead additional facts in support of their copyright
infringement claims and DMCA claims against Defendants Alan Cannon, Lane Stephenson, and
Texas A&M University 12th Man Foundation (“the Foundation”). More specifically, Plaintiffs
seek to plead additional facts in support of their contributory copyright infringement claims against
Defendants Alan Cannon and Lane Stephenson, which claims were previously dismissed under
Fed. R. Civ. P. 12(b)(6) on the grounds of qualified immunity and for perceived pleading failures
as to the elements of contributory infringement; and in support of their contributory and vicarious
infringement claims against the Foundation, which claims were dismissed on the grounds that
Plaintiffs did not plead the elements of contributory or vicarious infringement. Plaintiffs have
never received the opportunity to amend their pleadings as to these claims, which raise substantial
and important issues regarding copyright infringement and immunity. As the proposed SAC
demonstrates, Plaintiffs are capable of stating a valid claim against these Defendants, and should
have the chance to do so.
1
Plaintiffs have argued throughout the case that the Due Process Clause was at issue. However, Defendants previously
argued that Plaintiffs had not sufficiently pleaded such a claim. Accordingly, to set aside any question as to whether
such a claim is presented, Plaintiffs now seek leave to more explicitly state that cause of action as a violation of the
Due Process Clause for which Plaintiffs may seek damages against TAMU.
1
These amendments are clearly appropriate as a matter of procedure. First, the Court’s
dismissal rulings based on issues of sovereign immunity with respect to the Athletic Department
and TAMU, must, as a matter of law, be without prejudice. Swanson v. R.R. Com’n of Texas, No.
CIV.A. C-11-80, 2011 WL 2039601, at *7 (S.D. Tex. May 24, 2011) (collecting Fifth Circuit
authority) (explaining that a dismissal for lack of subject matter jurisdiction due to state sovereign
immunity must be without prejudice). To the extent that the dismissal of claims against Cannon
and Stephenson depend upon state sovereign immunity principles, they too must be dismissed
without prejudice. Second, Plaintiffs also seek to amend claims against the Foundation, Cannon,
and Stephenson dismissed for failure to state a claim under Fed. R. Civ. P. 12(b)(6), but it is unclear
from the Court’s March 29, 2019 Order (the “Dismissal Order”) whether these claims were
dismissed with or without prejudice. If the Court intended these dismissals to be with prejudice,
Plaintiffs include in this motion a request for the Court to reconsider that aspect of its order and
allow Plaintiffs an opportunity to redress any deficiencies in an amended pleading.
Under the Federal Rules, courts should freely grant parties leave to amend their pleadings
when justice so requires. Fed. R. Civ. P. 15(a)(2). Moreover, Federal Rule of Civil Procedure
54(b) “authorizes a district court to reconsider and reverse its prior rulings on any interlocutory
order ‘for any reason it deems sufficient.’” United States v. Renda, 709 F.3d 472, 479 (5th Cir.
2013). This holds true “even in the absence of new evidence or an intervening change in or
clarification of the substantive law.’” Austin v. Kroger Texas, L.P., 864 F.3d 326, 336 (5th Cir.
2017). The Rule 54(b) standard reflects the “‘inherent power of the rendering district court to
afford such relief from interlocutory judgments as justice requires.’” Id. at 337. Accordingly,
even if aspects of the Court’s Dismissal Order were intended to be with prejudice, the Court may
consider Plaintiffs’ arguments to assess whether to allow Plaintiffs’ proposed SAC.
2
SUMMARY OF THE ARGUMENT
Under Rule 15, a district court reviewing a motion to amend a complaint considers five
factors: (1) undue delay; (2) bad faith or dilatory motive; (3) repeated failure to cure deficiencies
by previous amendments; (4) undue prejudice to the opposing party; and (5) futility of amendment.
Williams v. City of Denton, Tex., 2020 WL 1158610, at *3 (E.D. Tex. Mar. 10, 2020). No prejudice
or undue delay would result from granting this motion. Indeed, Plaintiffs acted swiftly after the
stay was lifted on April 8 to prepare these amendments, which cure issues raised in this Court’s
Dismissal Order. Moreover, Plaintiffs’ amendments are neither futile nor made in bad faith.
Plaintiffs respectfully request leave to file the proposed SAC.
PROCEDURAL HISTORY
This case concerns a biography of E. King Gill—an individual involved in Texas A&M
University’s storied “12th Man” tradition. Plaintiffs researched, prepared, and—at all relevant
times—owned the biography. As Plaintiffs sought to market the biography for sale, Defendants
wrongfully used and disseminated the work without Plaintiffs’ knowledge or consent. Plaintiffs
thus asserted claims against Defendants for willful copyright infringement, and intentional
violations of the DMCA. Doc. 1. Plaintiffs filed the First Amended Complaint on April 17, 2017,
Doc. 15, as a matter of course within the deadline set by the Court’s first scheduling order, and
adding a claim based upon the same facts for an unconstitutional taking of property. On May 17,
Defendants filed their first (and only) motions to dismiss in this case. Docs. 33, 34. Plaintiffs
moved to amend a second time, in part, to address those motions, but the Court denied leave,
preferring to first resolve Defendants’ motions directly. Doc. 74. The Court stated, however, that
the denial was “without prejudice to [an amended pleading] being re-filed or re-asserted following
the Court’s ruling on the pending dispositive motions. To the extent the Scheduling Order deadline
for seeking leave to amend or join new parties may need to be extended, it will be.” Id.
3
On March 29, 2019, the Court granted Defendants’ motion to dismiss as to certain of the
Defendants. Doc. 96. Given, inter alia, the Supreme Court’s decision to grant review in Allen v.
Cooper, Plaintiffs moved the Court to reconsider the Dismissal Order. Doc. 102. On September
18, 2019, this Court stayed this case pending the outcome of Allen. Doc. 111. The Court lifted
that stay on April 8, 2020, Doc. 121, and Plaintiffs now (after meeting and conferring with counsel
for the Defendants over the last week) timely seek amendment.
ARGUMENT
I. Plaintiffs’ SAC Addresses the Issues Raised in the Court’s Dismissal Order.
Plaintiffs seek leave to amend to address six of this Court’s holdings from its Dismissal
Order. Doc. 96. First, the Court ruled that the First Amended Complaint (“FAC”) failed to state
a claim of contributory copyright infringement against Defendants Cannon and Stephenson
because Plaintiffs had failed to allege sufficient knowledge of the infringement. Id. at 28-29, 30-
31. Thus, Plaintiffs’ proposed amended complaint adds additional specific allegations that, when
proven, will establish that these Defendants had actual or constructive knowledge of the copyright
infringement of Plaintiffs’ work, or were willfully blind, and materially contributed to that
infringement. Ex. A (Second Am. Compl.) at 30-32.
Second, the Court concluded that because of a failure to plead knowledge, Cannon and
Stephenson enjoyed qualified immunity because their conduct had been objectively reasonable.
Doc. 96 at 27-28, 29-30. Thus, Plaintiffs add plausible allegations that the conduct of those
defendants was, indeed, objectively unreasonable. Specifically, both Cannon and Stephenson
occupied job positions in which they would, or at least should, have known that their subordinate
and colleague was infringing Plaintiffs’ work, and both were responsible for ensuring that the
Texas A&M Athletic Department had obtained the proper consent. Ex. A at 20-22, 30, 31. Cannon
4
and Stephenson also had prior knowledge of the copyrighted work, such that they would know that
the work could not be used without consent. Id. at 31.
Third, the Court held that the FAC failed to allege, for purposes of establishing vicarious
copyright infringement, that Defendant Texas A&M University 12th Man Foundation (the
“Foundation”) possessed the right and ability to supervise the Athletic Department’s infringing
conduct. Doc. 96 at 22-23. Thus, the SAC adds additional specific, plausible allegations that the
Foundation had the right and ability to control the infringement for the purposes of vicarious
copyright infringement. Ex. A at 33-34. Plaintiffs also include allegations that the Foundation’s
financial control over the Athletic Department is so overwhelming that the Foundation did indeed
exercise supervision and control. Id.
Fourth, the Court concluded that Plaintiffs failed to allege, for the purposes of contributory
infringement, facts showing that the Foundation had knowledge of the infringement. Doc. 96 at
22-23. Plaintiffs’ SAC therefore adds allegations that the Foundation provided the site and
facilities for the infringing conduct and, as such, was a contributory infringer. Ex. A at 32.
Fifth, the Court’s Dismissal Order held that TAMU, rather than its Athletic Department,
was the “correct” party in this case because the latter does not have the capacity to be sued under
Fed. R. Civ. P. 17(b). Doc. 96 at 12-14. Plaintiffs thus seek leave to amend their Complaint to
substitute TAMU as a defendant in lieu of the Athletic Department. Ex. A at 29-38.
Lastly, the Court held that even had TAMU been named in the prior pleading, it has
sovereign immunity. Doc. 96 at 14, 17, 18, 21. As explained in Plaintiffs’ previously filed brief
in response to this Court’s April 8, 2020 order, Doc. 126 at 2-3, and in their motion for
reconsideration of the Court’s Order of April 8, 2020, Doc. 129, TAMU should not have an
immunity defense because Plaintiffs allege that TAMU intentionally committed copyright
5
infringement without providing any state law remedy, thereby committing takings violations and
depriving Plaintiffs of their property without due process of law in violation of the Fourteenth
Amendment. Because Plaintiffs’ have pleaded not only a violation of the copyright statute but
also an actual constitutional violation, they are entitled to proceed notwithstanding TAMU’s
sovereign immunity pursuant to United States v. Georgia, 546 U.S. 151 (2006). Doc. 128 at 3-7.
II. Plaintiffs’ Amendments Satisfy the Five Factors Courts Consider to Grant Leave to
Amend.
“The policy of the federal rules is to permit liberal amendment to facilitate determination
of claims on the merits and to prevent litigation from becoming a technical exercise in the fine
points of pleading.” Dussouy v. Gulf Coast Inv. Corp., 660 F.2d 594, 598 (5th Cir. 1981). In the
Fifth Circuit, Rule 15(a) is interpreted as demonstrating a strong bias in favor of granting leave
to amend. Mayeaux v. La. Health Serv. & Indem. Co., 376 F.3d 420, 425 (5th Cir. 2004). Absent
a “substantial reason,” such as futility or “undue delay, bad faith, dilatory motive, repeated
failures to cure deficiencies, or undue prejudice to the opposing party,” district courts are
generally required to entertain the presumption in favor of granting leave to amend. Id. While
the district court retains discretion to accept or reject an amendment under Rule 15(a)(2), the rule
“evinces a bias in favor of granting leave to amend.” Jones v. Robinson Prop. Grp., L.P., 427
F.3d 987, 994 (5th Cir. 2005) (quoting Lyn-Lea Travel Corp. v. Am. Airlines, Inc., 283 F.3d 282,
286 (5th Cir. 2002)). No substantial reason counsels against granting leave to file the proposed
SAC.
First, Plaintiffs do not act with undue delay, bad faith, or dilatory motive in filing this
proposed amended complaint. “[T]here [is] no undue delay [where] the facts indicate that
Plaintiff moved to amend at the first opportunity to do so given the challenges of this case,
namely, Defendants’ asserted motions to dismiss and qualified immunity [issues].” Williams,
6
2020 WL 1158610, at *4. Moreover, in the Fifth Circuit, delay alone is insufficient to deny leave
to amend. The delay must prejudice or impose unwarranted burdens on the court or defendants.
Mayeaux, 376 F.3d at 427; see also Dussouy, 660 F.2d at 598 (“Amendment can be appropriate
as late as trial or even after trial.”). Here, Plaintiffs move to amend at the first practicable
opportunity following this Court’s adjudication of Defendants’ complex motions to dismiss
asserting Plaintiffs’ failed to state a claim under Rule 12(b)(6), as well as qualified and sovereign
immunity.2
After the Dismissal Order, Plaintiffs timely moved this Court to substitute TAMU “in lieu
of the [Athletic Department],” Doc. 102 at 1-2, and to reconsider other rulings from which the
instant amendments now flow. In response, this Court—given appropriate circumstances—
stayed proceedings for nearly seven months. Plaintiffs now seek leave to amend roughly one
month after that stay was lifted with amendments to address many of the same issues Plaintiffs
raised in their earlier reconsideration motion (but which were not specifically addressed in the
Court’s April 8, 2020 Order). Relevant to Plaintiffs’ amendment to add TAMU as a Defendant,
the Court did not specify whether its dismissal of claims based on state sovereign immunity was
with or without prejudice. Nonetheless, it must be the latter as a matter of law. See Swanson,
2011 WL 2039601, at *7 (citing Warnock v. Pecos County, Texas, 88 F.3d 341, 343 (5th Cir.
1996) (“Because sovereign immunity deprives the court of jurisdiction, the claims barred by
sovereign immunity can be dismissed only under Rule 12(b)(1) and not with prejudice.”)).3
2
As discussed supra, Plaintiffs previously moved to file a Second Amended Complaint to, inter alia, address
Defendants’ Motions to Dismiss on January 8, 2018 (Doc. 61). As noted above, Magistrate Stacy denied Plaintiffs’
motion “without prejudice to [an amended pleading] being re-filed or re-asserted following the Court’s ruling on the
pending dispositive motions. To the extent the Scheduling Order deadline for seeking leave to amend or join new
parties may need to be extended, it will be.” Doc. 74 (March 8, 2018 Order).
3
See also 8-41 MOORE’S FED. PRAC. CIV. § 41.50 (2017) (“[A] dismissal for lack of subject-matter jurisdiction under
Rule 12(b)(1) constitutes a dismissal without prejudice under Rule 41(b).”); 18A FED. PRAC. & PROC. JURIS. § 4436
(2d ed.) (“There is little mystery about…Civil Rule 41(b) provid[ing] that a dismissal for lack of jurisdiction or
improper venue does not operate as an adjudication upon the merits.”).
7
The Court likewise did not specify whether its dismissal of claims against the non-state
Defendants was with or without prejudice, but it should be the latter because Plaintiffs have not
had the opportunity to amend their pleadings to address the non-state Defendants’ Motions to
Dismiss. This is especially so for claims dismissed on qualified immunity grounds because
Plaintiffs were not required to “fully anticipate the defense [of qualified immunity] in [their]
complaint at the risk of dismissal under Rule 12[.]” Schultea v. Wood, 47 F. 3d 1427, 1430 (5th
Cir 1995) (en banc); Crawford-El v. Britton, 523 U.S. 574, 595 (1998) (Plaintiffs have no need
to “anticipate the immunity defense” when filing their complaint). Stephenson and Cannon did
not file answers in this case, and instead raised qualified immunity for the first time in a motion
to dismiss.4 In this context, a dismissal without prejudice with leave to amend to address qualified
immunity best incorporates the instruction of Schultea and Crawford-El at this juncture.
Second, the proposed amendments would not cause undue prejudice to Defendants. The
amendments are all reasonable and natural outcomes of the Court’s Dismissal Order, as explained
below. Plaintiffs’ amendments to supplement their allegations against the individual Defendants
and the Foundation also directly address the Court’s dismissals, but as noted above, the
procedural posturing is unclear. To the extent that the Court’s dismissal of Plaintiffs’ claims
against these Defendants for failure to state a claim was with prejudice, Plaintiffs ask this Court
4
The Fifth Circuit has expressed a clear preference for “an answer raising the affirmative defense of qualified
immunity followed by a reply under Rule 7(a)” so that the plaintiff has an opportunity to address the defense of
qualified immunity with additional allegations before the motion to dismiss stage. Reitz v. City of Abilene, No. 1:16-
CV-0181-BL, 2017 WL 3046881, at *13 (N.D. Tex. May 25, 2017); Alvarado v. Texas Health & Human Servs.
Comm’n, No. 5:19-CV-0106-JKP, 2019 WL 6876499, at *6 (W.D. Tex. Dec. 17, 2019); Winslow v. Harris Cty., No.
CV H-07-767, 2007 WL 9754606, at *2 (S.D. Tex. May 31, 2007) (“the Court cannot escape the fact that in Schultea
… the Fifth Circuit has expressed a clear preference for Rule 7(a) replies after a qualified immunity defense has been
asserted”). This is because “[a] motion under Fed. R. Civ. P. 12(b)(6) is certainly a poor vehicle for resolving claims
of qualified immunity[.]” Reitz v, 2017 WL 3046881, at *12; see also Jacobs v. City of Chicago, 215 F.3d 758, 775
(7th Cir. 2000) (Easterbrook, J., concurring) (“Rule 12(b)(6) is a mismatch for immunity and almost always a bad
ground of dismissal.”).
8
to reconsider. Under Rule 15, Plaintiffs are granted liberal leave to address pleading sufficiency
issues raised in a motion to dismiss. Here, as summarized in more detail below, Plaintiffs have
not had the opportunity to do so in this case. “When a complaint fails to state a claim, the court
should generally give the plaintiff at least one chance to amend before dismissing the action with
prejudice unless it is clear that the defects in the complaint are incurable.” Tow v. Amegy Bank
N.A., 498 B.R. 757, 765 (S.D. Tex. 2013) (citing Great Plains Tr. Co. v. Morgan Stanley Dean
Witter & Co., 313 F.3d 305, 329 (5th Cir. 2002)). As Plaintiffs’ proposed amendments bear out,
the perceived defects in Plaintiffs’ case are curable. Thus, Plaintiffs’ claims should not be
dismissed with prejudice.
The substitution of TAMU as a defendant, and the express pleading of a cause of action
against TAMU for violation of Plaintiffs’ due process rights under the Fourteenth Amendment is
likewise reasonable and serves judicial economy. Plaintiffs initially filed this suit against the
Athletic Department separately based on their good faith legal theory that the Department is
institutionally and financially separate from the university. The amendment only is necessary
because of the Court’s prior ruling that original joinder of the Texas A&M Athletic Department
was inappropriate as it is not a separate, distinct entity from TAMU. The substitution merely
adds the appropriate party based upon that ruling. This court having rejected Plaintiffs’ initial
theory and treated the Department as indistinguishable from TAMU, it is only fair to allow
Plaintiffs to proceed against TAMU and make their arguments that immunity should nonetheless
be no bar to their claims. Depending on the Court’s ruling on Plaintiffs’ concurrently filed motion
for reconsideration on how the Court should approach the issue of immunity following the U.S.
Supreme Court’s ruling in Allen v. Cooper, the case will either proceed against TAMU as a party
or the amendment will preserve TAMU’s status as a party for appeal.
9
Neither do the proposed amendments stem from repeated failures to cure a deficiency in
the original complaint. Plaintiffs amended their complaint once as a matter of course under Rule
15(a). After Defendants’ motions to dismiss, Plaintiffs asked for leave to amend to, inter alia,
address some of Defendants’ allegations of insufficient pleading. Doc. 61. That request was
timely under the Court’s prior Scheduling Order, Doc. 39, which set a January 8, 2018 deadline
to file motions for leave to amend pleadings. Notably, this Court denied Plaintiffs’ motion,
without prejudice, only because “judicial efficiency and economy weigh[ed] in favor of a
resolution of the pending dispositive motions [i.e., motions to dismiss] prior to the consideration,
or allowance of, the proposed amended pleading.” Doc. 74. The Court did not conclude that
Plaintiffs’ prior proposed amendments were untimely, in bad faith, or futile. Now that
Defendants’ motions to dismiss have been finally resolved, it is time for Plaintiffs to re-visit
amending their complaint.
Finally, the filing of this proposed SAC is hardly “futile.” See Stripling v. Jordan Prod.
Co., LLC, 234 F.3d 863, 873 (5th Cir. 2000) (the standard for “futility” in the Fifth Circuit is
whether the amended complaint would “fail to state a claim upon which relief could be granted,”
and the court applies the “same standard of legal sufficiency as applies under Rule 12(b)(6).”).
As to Defendants Cannon and Stephenson, the proposed SAC asserts the same type of knowledge
of copyright infringement found in Oppenheimer v. Deiss, No. A-19-cv-423-LY, 2019 WL
6525188, at *4 (W.D. Tex., Dec. 3, 2019), to have stated a claim for contributory and vicarious
copyright infringement.5 There, a photographer brought suit against a website that allegedly
5
Plaintiffs also add allegations concerning Defendants’ willful blindness. See In re Aimster copyright litigation, 334
F.3d 643, 650 (7th Cir. 2003) (“Willful blindness is knowledge, in copyright law (where indeed it may be enough that
the defendant should have known of the direct infringement, as it is in the law generally.) (internal cites omitted);
Global-Tech Appliances, Inc. v. SEB SA, 131 S. Ct. 2060, 2069 (2011) (“[P]ersons who know enough to blind
themselves to direct proof of critical facts in effect have actual knowledge of those facts.”).
10
displayed his copyrighted photograph without permission. He also brought suit against
individuals involved with operating the website. The court held that the plaintiff’s allegations
were sufficient to survive a motion to dismiss as to secondary copyright infringement where the
pleading alleged that the defendants “intentionally induced, encouraged, caused, enabled,
facilitated, and/or materially contributed to the infringements complained of [] by directly and/or
indirectly promoting the infringements, and/or have refused to exercise their right and/or ability
to stop the infringements after they began.” Id. at *3. The plaintiff also alleged that the
defendants “provided hands-on decision making with respect to the activities of the companies,
set and controlled the companies’ policies and protocols, and established corporate rules and
cultures which encouraged the infringing activities.” Id. Here, Plaintiffs’ SAC alleges similar
facts from which the knowledge element should be satisfied at this stage of the case. Ex. A at
20-22, 29-32.
As to the allegations against the Foundation, the allegations, Ex. A 29-38, of financial
control over TAMU, and of entanglements between leaders of TAMU and its Athletic
Department on the one hand, and the Foundation on the other hand, state a claim for vicarious
infringement. See UMG Recordings, Inc. v. Bertelsmann AG, 222 F.R.D. 408, 414 (N.D. Cal.
2004) (allegation that defendant exercised full operational control over infringer stated claim for
secondary copyright infringement). Moreover, the allegations that the Foundation provided the
site and facilities for the alleged primary infringement supports a claim for contributory
infringement. See Fonovisa, Inc. v. Cherry Auction, Inc., 76 F. 3d 259, 264 (9th Cir. 1996)
(“Providing the site and facilities for known infringing activity is sufficient to establish
contributory liability.”); 2 William F. Patry, Copyright Law & Practice 1147 (“Merely providing
the means for infringement may be sufficient to incur contributory copyright liability.”).
11
The motion for leave to add TAMU as a party merely brings the pleadings in line with the
Court’s own prior ruling. This Court has already observed that “the ‘correct party’” is “the
University,” which may be substituted under Rule 17. Doc. 96 at 14 (citing Goldin v. Bartholow,
166 F.3d 710, 721 (5th Cir. 1999)). Defendants have also conceded that courts may substitute a
party in these circumstances. Doc. 34 at 5 (citing Gray v. City of Chicago, 159 F. Supp. 2d 1086,
1089 (N.D. Ill. 2001)). Similarly, Rule 20 permits joinder of defendants where, as here, the right
to relief asserted against them arises out of the same transaction or occurrence and raises the same
questions of law or fact. And Rule 21 allows a court “[o]n motion or on its own…at any time,
on just terms, [to] add or drop a party.” This Court can, and should, exercise that discretion here.
Plaintiffs’ claims against TAMU are thus far from futile. As discussed in Plaintiffs’ previously
filed Motion for Reconsideration of this Court’s April 8, 2020 Order, without sovereign immunity
under U.S. v. Georgia, TAMU has little else in the way of a meaningful defense. And even if
this Court rejects Plaintiffs’ arguments for reconsideration, substitution of the State as defendant
will simplify the sovereign immunity issues on appeal.
Further, claims against the University are not futile as untimely because they relate back
to Plaintiffs’ original January 19, 2017 complaint under Rule 15(c). Plaintiffs’ claims against
TAMU arise out of the exact same conduct, transactions or occurrences that Plaintiffs set out
against the Athletic Department—namely, the infringement of Plaintiffs’ copyrights. Likewise,
Plaintiffs’ Due Process Clause claim against TAMU, arises out of the same allegations Plaintiffs’
previously asserted. TAMU also clearly had notice of Plaintiffs’ complaint from the outset of
this case. In the Fifth Circuit, courts “will infer notice [sufficient to satisfy Rule 15(c)] if there is
an identity of interest between the original defendant and the defendant sought to be added or
substituted.” Jacobsen v. Osborne, 133 F.3d 315, 320 (5th Cir. 1998). “Identity of interest
12
generally means that the parties are so closely related in their business operations or other
activities that the institution of an action against one serves to provide notice of the litigation to
the other. In this regard, notice may be imputed to the new party through shared counsel.” Id.
(internal citations and quotation marks omitted).
Here, TAMU has already participated substantially in this lawsuit, filing a Motion to
Dismiss “on behalf of its unincorporated division, the Texas A&M Athletic Department, and
individual defendants, Brad Marquardt, Alan Cannon, and Lane Stephenson” through shared
counsel. Doc. 34 at 1. TAMU’s position all along has been that it is the proper defendant, not
the Athletic Department in a separate capacity. Id. 5-6. Plaintiffs do not concede that the Athletic
Department is, in fact, an unincorporated and non-jural division of TAMU without capacity to
sue. Nonetheless, TAMU’s substantial participation in this case as a de facto defendant obviates
any doubt that they have had notice of the suit and that they “knew or should have known” that
Plaintiffs would pursue an action against them under Rule 15(c)(1)(C)(i)-(ii). As a practical
matter, there is “little practical difference between Rule 15 and Rule 21 since they both leave the
decision whether to permit or deny an amendment to the district court’s discretion.” See, e.g.,
Amaya v. Roadhouse Brick Oven Pizza, Inc., 285 F.R.D. 251, 253 (E.D.N.Y. 2012). This Court
should grant substitution of TAMU under either standard.
III. Plaintiffs Seek to Preserve Their Original Claims on Appeal.
Complicating Plaintiffs’ efforts to amend their pleading is the fact that, by omitting any
parties and claims because of the Court’s Dismissal Order, Plaintiffs do not want to risk waiving
their rights to later appeal some of the Court’s rulings. “The general rule is that an amended
complaint supersedes and replaces the original pleading, which would preclude an appeal of any
matters contained in the original complaint, but not brought forward to the amended pleading.”
13
Bryant v. Military Dep’t, 2005 WL 8171753, at *1 (S.D. Miss. Dec. 12, 2005) (citing Wilson v.
First Houston Invs. Corp., 566 F.2d 1235, 1237-38 (5th Cir. 1978), rev’d on other grounds, 444
U.S. 959 (1979)). There is “substantial authority” that a plaintiff may be “precluded from
asserting matters raised in his original complaint but dismissed by the district court and omitted
from the amendment.” Id. (citing 6 Wright & Miller, Federal Prac. & Procedure § 1476 (1971)
(“Several courts have held that the amended pleading supersedes the original pleading in all
respects so that an appeal from a subsequent judgment on the merits cannot involve an attack on
the dismissal of the original pleading.”)); Bennett v. Pippin, 74 F.3d 578, 585 (5th Cir. 1996).
The court in Wilson was “unwilling to compel the Plaintiff in [that] case to risk waiving
some of his claims against the Defendants by omitting them from his Amended Complaint.” Id.;
see also N. Texas Opportunity Fund L.P. v. Hammerman & Gainer Int’l, Inc., 2016 WL 6948469,
at *2 (N.D. Tex. Apr. 25, 2016) (“[T]he Court grants [Plaintiff’s] motion for leave. The Court
also recognizes that [Plaintiff’s] breach of fiduciary duty claim was previously dismissed with
prejudice and that it is only contained in the proposed amended complaint to preserve error on
appeal.”); Superior Offshore Int’l, Inc. v. Schaefer, 2012 WL 1551703, at *2 (S.D. Tex. Apr. 30,
2012) (“The claim is included in the Amended Complaint to preserve the issue for appeal.”).
Thus, Plaintiffs’ SAC includes the Athletic Department as well as claims against TAMU.
CONCLUSION
For the reasons set forth herein, Plaintiffs Michael J. Bynum and Canada Hockey LLC
d/b/a Epic Sports respectfully request the Court to grant their Motion and to enter the SAC
attached hereto as “Exhibit A” on the docket as the operative pleading.
14
Dated: May 11, 2020 Respectfully submitted,
/s/ Owen J. McGovern

BECK REDDEN LLP
JOE W. REDDEN, JR.
S.D. TEX. NO. 2139
STATE BAR NO. 16660600
jredden@beckredden.com
OWEN MCGOVERN
S.D. TEX. NO. 2523814
STATE BAR NO. 24092804
omcgovern@beckredden.com
1221 MCKINNEY ST., SUITE 4500
HOUSTON, TEXAS 77010-2010
PHONE: (713) 951-3700
FAX: (713) 951-3720
ATTORNEYS FOR PLAINTIFFS
MICHAEL J. BYNUM and CANADA
HOCKEY LLC d/b/a EPIC SPORTS
ATTORNEY IN CHARGE
BECK REDDEN LLP
Joe W. Redden, Jr.
S.D. Tex. No. 2139
State Bar No. 16660600
jredden@beckredden.com
1221 McKinney St., Suite 4500
Houston, TX 77010-2010
OF COUNSEL:
BECK REDDEN LLP

Owen J. McGovern
S.D. Tex. No. 2523814
omcgovern@beckredden.com
1221 McKinney St., Suite 4500
Houston, TX 77010-2010
15
BAKER, DONELSON, BEARMAN, CALDWELL & BERKOWITZ, P.C.

Kenneth E. McKay
S.D. Tex. No. 10627
kmckay@bakerdonelson.com
Katriel Statman
S.D. Tex. No. 2513924
kstatman@bakerdonelson.com
1301 McKinney, Suite 3700
Houston, Texas 77010
(713) 650-9700 (Telephone)
(713) 650-9701 (Facsimile)
MITCHELL SILBERBERG & KNUPP LLP

J. Matthew Williams
Appearing Pro Hac Vice
DC Bar No. 501860
mxw@msk.com
1818 N Street, NW, 7th Floor
Washington, DC 20036
Robert H. Rotstein
Appearing Pro Hac Vice
California Bar No. 72452
rxr@msk.com
2049 Century Park East, 18th Floor
Los Angeles, CA 90067-3120
16
CERTIFICATE OF CONFERENCE
I hereby certify that I conferred by telephone with Melissa Mathers, counsel for
Defendants, regarding the requested relief. Opposing counsel confirmed Defendants’ opposition
to this motion.

Owen J. McGovern
17
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing was served upon all counsel
of record via the Court’s CM/ECF system and/or by certified mail, return receipt requested, on this
11th day of May, 2020.

Owen J. McGovern
18

Bynum Motion For Defendant Reconsideration

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Case 4:17-cv-00181 Document 131 Filed on 05/11/20 in TXSD Page 1 of 23

UNITED STATES DISTRICT COURT

MICHAEL J. BYNUM and CANADA

Plaintiffs, Civil Action No. 4:17-cv-00181

TEXAS A&M UNIVERSITY ATHLETIC Jury Trial Demanded

MOTION FOR RECONSIDERATION AND/OR MOTION FOR LEAVE TO FILE A

TABLE OF AUTHORITIES .......................................................................................................... ii

STATEMENT OF THE ISSUES TO BE RULED UPON BY THE COURT AND

SUMMARY OF THE ARGUMENT ............................................................................................. 3

III. Plaintiffs Seek to Preserve Their Original Claims on Appeal. ............................. 13

CERTIFICATE OF SERVICE ..................................................................................................... 18

In re Aimster copyright litigation,

Alvarado v. Texas Health & Human Servs. Comm’n,

Amaya v. Roadhouse Brick Oven Pizza, Inc.,

Austin v. Kroger Texas, L.P.,

Bryant v. Military Dep’t,

Dussouy v. Gulf Coast Inv. Corp.,

Fonovisa, Inc. v. Cherry Auction, Inc.,

Global-Tech Appliances, Inc. v. SEB SA,

Gray v. City of Chicago,

Jacobs v. City of Chicago,

Jones v. Robinson Prop. Grp., L.P.,

Lyn-Lea Travel Corp. v. Am. Airlines, Inc.,

Mayeaux v. La. Health Serv. & Indem. Co.,

N. Texas Opportunity Fund L.P. v. Hammerman & Gainer Int’l, Inc.,

Reitz v. City of Abilene,

Stripling v. Jordan Prod. Co., LLC,

Superior Offshore Int’l, Inc. v. Schaefer,

Swanson v. R.R. Com’n of Texas,

Tow v. Amegy Bank N.A.,

UMG Recordings, Inc. v. Bertelsmann AG,

United States v. Georgia,

United States v. Renda,

Warnock v. Pecos County, Texas,

Williams v. City of Denton, Tex.,

Wilson v. First Houston Invs. Corp.,

Winslow v. Harris Cty.,

Fed. R. Civ. P. 15(a)(2) ................................................................................................................2, 6

8-41 MOORE’S FED. PRAC. CIV. § 41.50 (2017) ...............................................................................7

2 William F. Patry, Copyright Law & Practice 1147 ....................................................................11

STATEMENT OF THE ISSUES TO BE RULED UPON BY THE COURT AND

have the chance to do so.

allow Plaintiffs an opportunity to redress any deficiencies in an amended pleading.

consider Plaintiffs’ arguments to assess whether to allow Plaintiffs’ proposed SAC.

SUMMARY OF THE ARGUMENT

Plaintiffs respectfully request leave to file the proposed SAC.

a claim of contributory copyright infringement against Defendants Cannon and Stephenson

infringement. Ex. A (Second Am. Compl.) at 30-32.

the work could not be used without consent. Id. at 31.

exercise supervision and control. Id.

substitute TAMU as a defendant in lieu of the Athletic Department. Ex. A at 29-38.

opportunity following this Court’s adjudication of Defendants’ complex motions to dismiss

instant amendments now flow. In response, this Court—given appropriate circumstances—

dismissed with prejudice.

or the amendment will preserve TAMU’s status as a party for appeal.

amending their complaint.

of copyright infringement found in Oppenheimer v. Deiss, No. A-19-cv-423-LY, 2019 WL

facilitated, and/or materially contributed to the infringements complained of [] by directly and/or

will simplify the sovereign immunity issues on appeal.

against the Athletic Department—namely, the infringement of Plaintiffs’ copyrights. Likewise,

(internal citations and quotation marks omitted).

should grant substitution of TAMU under either standard.

III. Plaintiffs Seek to Preserve Their Original Claims on Appeal.