Arkansas Business Litigation Blog : Arkansas Business Litigation Lawyer & Attorney : Allen Law Firm : Serving Little Rock, Fort Smith, North Little Rock

The District Court of Minnesota denied a motion to dismiss for lack of jurisdiction in Tri-Marketing, Inc. v. Mainstream Marketing Services, Inc., 2009 U.S. Dist. LEXIS 42694 (5/19/09).

Tri-Marketing filed suit for copyright infringement. Tri-Marketing had submitted its copyright application and fees but had not yet received the registration. Mainstream moved to dismiss for lack of jurisdiction. The court noted the circuit split on this issue--some courts permit the lawsuit to proceed once the application is filed, while other courts require the plaintiff to get the registration first.

The court noted that the Eighth Circuit has not decided this issue. However, the Eighth Circuit cited language that indicated it would adopt the application approach in Action Tapes, Inc. v. Mattson, 462 F.3d 1010 (2006) (previously posted 1/10/07). The court adopted the application approach and denied the motion to dismiss.

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The Eighth Circuit affirmed summary judgment in American Boat Co., Inc. v. Unknown Sunken Barge, No. 08-2166 (6/4/09).

The district court granted summary judgment to the United States. Plaintiffs failed to timely appeal because they claim not to have received the ECF notice of the summary judgment. An evidentiary hearing was held, and both parties had a computer forensics expert investigate the computer of Plaintiffs' counsel. Plaintiffs' expert was unable to provide an opinion as to why the notice failed to reach plaintiffs.

Although there was no evidence of the notice on Plaintiffs' counsel's server, there was evidence that Plaintiffs' counsel used a POP account to remotely check email. The court affirmed summary judgment, holding that denial of receipt cannot overcome the presumption that an ECF notice is received.

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The Eighth Circuit affirmed denial of a preliminary injunction in CDI Energy Services, Inc. v. West River Pumps, Inc., No. 08-1031 (5/29/09).

CDI sells oilfield equipment. It had one location in North Dakota with three employees. Those employees left CDI to form West River, a competing business. CDI's customers went to West River, and the CDI office went out of business. After obtaining a TRO for trade secret misappropriation and other counts, the district court dissolved the TRO and denied the preliminary injunction.

The Eighth Circuit affirmed, with two interesting holdings. First it held the customer lists were not trade secrets. Because the potential CDI customers was a small number of local oilfield companies, the information would be readily obtainable. Second, the court held no irreparable harm because, since CDI's office was closed, an injunction would do nothing to help them. In other words, CDI had been harmed to such a degree that the harm was no longer irreparable.

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The Arkansas Court of Appeals affirmed creation of a tacit contract in Crown Custom Homes, Inc. v. Buchanan Services, Inc., No. 09-20 (5/27/09).

The parties had a long history where Crown would send a request for work via fax. Buchanan would perform the work and then send a bill. The parties had conducted over $100,000 of business in this manner. Crown brought Cunningham to a meeting at Buchanan's office regarding some work. Cunningham faxed a work order to Buchanan from Crown's office. Buchanan performed the work, but Crown refused to pay, arguing the contract for that work was with Cunningham.

The trial court held a contract existed between the parties and entered judgment for Buchanan. The court of appeals affirmed, stating that course of dealing is properly considered to determine if a tacit contract is created.

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The Arkansas Supreme Court made a drastic change to Rule 5-2 in In re: Arkansas Supreme Court and Court of Appeals Rule 5-2, No. 09-540 (5/28/09).

Effective July 1, 2009, the electronic version of appellate decisions posted on the Arkansas Judiciary website will be the official reports. See Rule 5-2(d) for proper citation format to these decisions Additionally, the Reporter of Decisions will create a searchable database for all opinions issued after February 14, 2009. We believe Arkansas is the first jurisdiction to adopt electronic official reports.

The new rule also abandons the distinction between published and unpublished opinions. Every opinion issued after July 1, 2009, will be precedent.

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