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Dupree v. Green

United States District Court, N.D. Alabama, Middle Division

September 3, 2014

JESSE JAMES DUPREE and PENNY DUPREE, Plaintiffs,
v.
JAMES ROBERT GREEN, KEHE DISTRIBUTORS, INC., KEHE DISTRIBUTORS, LLC, Defendant.

MEMORANDUM OPINION

KARON OWEN BOWDRE, Chief District Judge.

This matter is before the court on Defendant James Robert Green's "Motion for Partial Summary Judgment on the Issue of Potential Future Lost Earnings." (Doc. 18). Plaintiff Jesse James Dupree filed a complaint against Green in this court alleging that on September 29, 2011 Green negligently operated an automobile, collided with Dupree's motorcycle, and caused injury to Dupree. (Doc. 1, 1-2). Dupree alleges that because of the collision and his injuries, he lost profits from the creation and sale of the television program he was filming on the day of the accident, "Trash to Treasure." (Doc. 1, 4). The parties agree that the court has diversity jurisdiction over these state law claims pursuant to 28 U.S.C. ยง 1332.

In his motion, Green argues that Dupree's potential lost profits from "Trash to Treasure" are not recoverable because Dupree did not take steps to continue filming the program after Dupree's injury and because Dupree did not yet have a buyer in place for the program. The court finds that Dupree's claim for lost profits is not barred as a matter of law. A question of fact exists for a jury whether Dupree's lost profits were caused by his collision with Green and whether Dupree's lost profits are reasonably ascertainable. Therefore, the court DENIES Green's Motion.

I. Standard of Review

Summary judgment allows a trial court to decide cases when no genuine issues of material fact are present and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56. When a district court reviews a motion for summary judgment, it must determine two things: (1) whether any genuine issues of material fact exist; and if not, (2) whether the moving party is entitled to judgment as a matter of law. Id.

The moving party "always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, ' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed.R.Civ.P. 56).

Once the moving party meets its burden of showing the district court that no genuine issues of material fact exist, the burden then shifts to the non-moving party "to demonstrate that there is indeed a material issue of fact that precludes summary judgment." Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). Disagreement between the parties is not significant unless the disagreement presents a "genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986).

Furthermore, all evidence and inferences drawn from the underlying facts must be viewed in the light most favorable to the non-moving party. See Graham v. State Farm Mut. Ins. Co., 193 F.3d 1274, 1282 (11th Cir. 1999). The evidence of the non-moving party "is to be believed and all justifiable inferences are to be drawn in [its] favor." Anderson, 477 U.S. at 255. After both parties have addressed the motion for summary judgment, the court must grant the motion only if no genuine issues of material fact exist and if the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56.

II. Facts

James Robert Green's automobile and Jesse James Dupree's motorcycle collided on September 29, 2011 in Cherokee County, Alabama. (Doc. 19, 2). Dupree's wrist, knee, ankle, and foot were injured during the collision. (Doc. 21, 10-11).

"Dupree was in the process of filming and creating a television program entitled Trash to Treasure' as of the date of the accident." (Doc. 19, 3). "Trash to Treasure" is about Dupree's adventures visiting "marathon" yard sales stretching hundreds of miles throughout rural areas of the country. (Doc. 21-1, 39-40). Dupree and his co-stars stop along the way to look for valuables among the junk. Id. Dupree also draws out human interest stories from the characters he meets at the sales. Id.

Though the concept of "Trash to Treasure" was developed shortly before the accident, the characters and story line had already been determined, shooting schedules had been established, the program's treatment had been created, and the program had been marketed to Base Productions, a production company. (Doc. 21, 15). Base Productions agreed to invest in the project in exchange for sixty percent of the executive producer fees though, ultimately, Dupree declined to work with Base Productions. (Doc. 21, 11).

The collision occurred six hours into "Trash to Treasure's" first day of shooting. (Doc. 19, 4). Dupree planned to film as he traveled between sites at the annual Highway 411 marathon yard sale. Id. Dupree planned to have "a minimum of four episodes to put together by the end of the day." (Doc. 19, 5). He was accompanied by co-stars Dwayne and Julia Bramlett, operators of Kennesaw Antiques, who evaluated items found at the yard sales. (Doc. 19, 4).

Dupree's injuries prevented him from completing filming on the day of the accident and on subsequent days. (Doc. 21, 11). Dupree planned to shoot the rest of the day of the accident and "for several subsequent days." (Doc. 21-5, 14). Dupree shot about an hour of additional footage the day after the accident but was limited by his injury. (Doc. 21-6, 11). Dupree performed with his band, Jackyl, two days after the accident in South Carolina. (Doc. 19, 6). Dupree only gave "a partial performance" and "performed sitting on a stool after being driven by his son." (Doc. 21, 9). The Highway 411 sale was the only marathon yard sale that fit Dupree's schedule that year. (Doc. 19, 5). Dupree did not return to film at the next ...


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