[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 19-10770

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D.C. Docket No. 1:15-cv-04013-ELR

BLACK BOX ROYALTIES, INC.,

ALBERT MARIA-JANSEN,

Individually and as Representative of the Estate of 

Arthur Lee Conley,

Plaintiffs-Appellants,

versus

UNIVERSAL MUSIC PUBLISHING, INC., 

UNIVERSAL MUSIC GROUP, INC., et al.

Defendants-Appellees.

_________________________

Appeal from the United States District Court

for the Northern District of Georgia

_________________________

(December 16, 2020)

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Before GRANT and MARCUS, Circuit Judges, and AXON,* District Judge.

AXON, District Judge:

Black Box Royalties, Inc. (“Black Box”), and Albert Maria-Jansen filed this

breach of contract action against Universal Music Publishing, Inc., Universal Music 

Group, Inc., UMG Recordings, Inc., Universal Music—MGB NA, LLC d/b/a 

Universal Music—MGB Songs, and Rondor Music International, Inc., (together 

“Universal”), claiming that Universal failed to pay Maria-Jansen royalties as 

required by several publishing agreements. Finding that Black Box failed to present 

any evidence of breach or damages, the district court granted summary judgment in 

favor of Universal. Black Box and Maria-Jansen appealed,

1 and we affirm. 

I. BACKGROUND

Between 1964 and 1970 Arthur Conley executed several publishing 

agreements with East Publications, Inc., in exchange for royalty payments. Through 

a series of corporate acquisitions, Universal now owns those agreements. Upon his 

* Honorable Annemarie C. Axon, United States District Judge for the Northern District of 

Alabama, sitting by designation. 1 The district court held that Maria-Jansen did not have standing to sue because he assigned 

his interest to Black Box. On appeal, Maria-Jansen does not challenge the district court’s finding 

that he lacked standing. Thus, he has waived that argument. See United States v. Jernigan, 341 

F.3d 1273, 1283 n.84 (11th Cir. 2003) (“Under our caselaw, a party seeking to raise a claim or 

issue on appeal must plainly and prominently so indicate . . . . Otherwise, the issue . . . will be 

considered abandoned.”). Because he lacked standing in the district court, he cannot challenge the 

merits of the court’s summary judgment ruling on appeal. See Wolff v. Cash 4 Titles, 351 F.3d 

1348, 1353–54 (11th Cir. 2003). Consequently, the Court’s description of the facts and arguments 

will focus on Black Box alone.

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death, Conley left his royalty interests to his partner, Maria-Jansen. Suspecting that 

Universal was not paying him all the royalties due on Conley’s music, Maria-Jansen

assigned his interest in the contracts to Black Box to recover potential outstanding 

royalties from Universal. 

II. PROCEDURAL HISTORY

Black Box and Maria-Jansen sued Universal for various claims, including

breach of contract. After dismissing all of the claims except for the breach of 

contract claim, the court entered a scheduling order adopting the time limits set out 

in the Federal Rules of Civil Procedure and the local rules of the Northern District 

of Georgia. The Northern District of Georgia assigns cases to one of three discovery 

tracks: (1) a zero-month discovery period; (2) a four-month discovery period; or (3) 

an eight-month discovery period. In accordance with the local rules, the court 

docketed the case under the four-month discovery track. 

Four days before discovery ended, Black Box filed a motion requesting a 

change to a scheduled deposition. In its motion, Black Box stated that the case was 

assigned to an eight-month discovery track. The court denied the motion and pointed 

out that the case was assigned to the four-month discovery track, making the 

scheduled deposition untimely. However, the court permitted depositions to proceed 

outside of the discovery period as previously scheduled. 

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Black Box then filed a motion to reopen and extend discovery citing various 

causes for delay and reminding the court that the parties had requested an extended 

discovery period in their joint report and discovery plan at the beginning of case. 

The court granted Black Box’s motion in part, allowing one additional month to 

complete expert discovery but denying the request to reopen fact discovery. Black 

Box filed a motion to reconsider, arguing that it reasonably believed that it had eight 

months to conduct discovery and that the court’s decision to end discovery deprived 

it of due process. The court denied Black Box’s motion, stating that it had already 

rejected the argument about the reasonableness of Black Box’s belief and that Black 

Box had “conducted no discovery in the four-month discovery period” and had still 

not complied with discovery deadlines even after the extension for expert discovery.

Universal then moved for summary judgment. In response, Black Box filed 

a motion to defer judgment and reopen discovery pursuant to Federal Rule of Civil 

Procedure 56(d). The court denied Black Box’s motion, finding that Black Box 

already had “an adequate opportunity” for discovery, and it granted summary 

judgment in favor of Universal. First, the court found that Maria-Jansen did not have 

standing to sue because he had assigned his interest to Black Box; second, the court 

found that Black Box failed to produce twenty of the twenty-two contracts at issue2

2 There is some disagreement about whether twenty or twenty-two contracts were actually 

at issue in this case. Throughout their briefing, both parties refer to twenty-two disputed contracts. 

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and thus could not prove that Universal breached the terms of those contracts; and 

third, the court found that Black Box failed to present evidence that Universal 

breached the two contracts in the record. Black Box filed this appeal challenging 

the district court’s summary judgment ruling and its denial of the Rule 56(d) motion.

III. STANDARD OF REVIEW

We review a district court’s denial of a Rule 56(d) motion for an abuse of 

discretion. Harbert Int’l, Inc. v. James, 157 F.3d 1271, 1277 (11th Cir. 1998)

(discussing the predecessor to Rule 56(d)). 

We review a district court’s grant of summary judgment de novo, applying 

“the same legal standards that governed the district court.” Kroma Makeup EU, 

LLC v. Boldface Licensing + Branding, Inc., 920 F.3d 704, 707 (11th Cir. 2019).

Summary judgment is appropriate against “a party who fails . . . to establish the 

existence of an element essential to that party’s case, and on which that party will 

bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). 

IV. DISCUSSION

This case is straightforward: Black Box had the burden to present evidence of 

the essential elements of its claim, and it failed to do so. Black Box presented only 

But as the district court noted, the complaint lists only twenty songs. Like the district court, this 

Court will assume that twenty-two contracts are at issue. In any event, the number of royalty 

agreements does not affect this Court’s analysis because the record contains evidence of only two 

contracts. 

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two of the disputed royalty agreements to the district court, and it did not point the 

court to any specific instances of breach. Black Box claims that its failure to present 

evidence of a breach should be excused because it “reasonably misunderstood” the

scheduling order. But the scheduling order was clear, and Black Box’s purported 

misunderstanding of the scheduling order was not reasonable and does not excuse 

its failure to conduct discovery or present evidence in opposition to summary 

judgment. Thus, the district court properly denied Black Box’s Rule 56(d) motion 

and correctly held that Black Box failed to carry its summary judgment burden of 

production.

A. Black Box’s Rule 56(d) Motion

The district court’s denial of the Rule 56(d) motion impacts our summary 

judgment analysis, so we discuss it first. Rule 56(d) permits a movant to “show[ ] 

by affidavit or declaration that, for specified reasons, it cannot present facts essential 

to justify its opposition” to a motion for summary judgment. Fed. R. Civ. P. 56(d). 

The court may defer consideration of the motion, deny it, “allow time to obtain 

affidavits or declarations or to take discovery,” or “issue any other appropriate 

order.” Id. The court’s decision is discretionary and depends in large part on 

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whether the parties had “ample time and opportunity for discovery.” Barfield v. 

Brierton, 883 F.2d 923, 932 (11th Cir. 1989). 

The district court did not abuse its discretion by denying Black Box’s Rule 

56(d) motion. Contrary to Black Box’s contention that it reasonably understood the 

order to require an eight-month discovery period, the scheduling order clearly set a 

four-month period: the order expressly adopted the time limit for discovery “set out 

in . . . the Local Rules of this Court,” which call for a four-month discovery track for 

contract cases like this one. N.D. Ga. L. R. 26.2(A) & App’x F. Plaintiffs’ counsel 

knew the local rule because he indicated on the civil cover sheet that the case would 

typically proceed under the four-month discovery track. The fact that Black Box (or 

even Universal) may have asked for a longer period does not cloud the clarity of the 

court’s scheduling order, especially in light of the court’s indication on the docket 

sheet that the case was proceeding on the four-month discovery track.

Faced with a clear scheduling order that gave the parties four months to 

complete discovery, Black Box did not propound a single discovery request upon 

Universal. Even after the court later extended the expert discovery deadline, Black 

Box still did not conduct any discovery. Black Box had “ample time and opportunity 

for discovery.” Barfield, 883 F.2d at 932; see also Fla. Power & Light Co. v. Allis 

Chalmers Corp., 893 F.2d 1313, 1316 (11th Cir. 1990) (holding that the denial of a 

Rule 56(d) motion was not an abuse of discretion where, among other things, the 

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court had extended the discovery deadline already). Therefore, the district court did 

not abuse its discretion by denying Black Box’s Rule 56(d) motion.

B. Universal’s Motion for Summary Judgment

Black Box claims that Universal breached twenty-two royalty agreements, but 

it failed to present evidence from which a reasonable jury could find in its favor.

Under Georgia law, a party advancing a breach of contract claim must first present 

the actual terms of the contract. Bazemore v. Jefferson Capital Sys., LLC, 827 F.3d 

1325, 1330–31 (11th Cir. 2016); Key v. Naylor, Inc., 602 S.E.2d 192, 195 (Ga. Ct. 

App. 2004). Next, the plaintiff must show that the defendant breached the contract 

terms, causing damage to the non-breaching party. SAWS at Seven Hills, LLC v. 

Forestar Realty, Inc., 805 S.E.2d 270, 274 (Ga. Ct. App. 2017). 

Here, Black Box did not present evidence of the terms of twenty of the 

disputed royalty agreements. Although it was Black Box’s burden to present 

evidence of the terms of each contract, it produced only two of the royalty 

agreements to the court. Without evidence of the terms of the twenty missing 

contracts, a reasonable jury could not find that Universal breached those contracts. 

Accordingly, the district court properly granted summary judgment in favor of 

Universal on the breach of contract claim relating to the twenty missing contracts.

Black Box did, however, present two of the disputed contracts to the court for 

consideration, thereby carrying its burden to present evidence of the terms of those 

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contracts. Black Box advanced several theories of breach, but those theories all 

suffered from the same deficiency: a failure to present any evidence from which a 

reasonable jury could find that Universal did not comply with the contract terms. 

For example, Black Box claims that Universal failed to pay the United States 

statutory rate for royalties. But nothing in the contracts requires Universal to pay 

the statutory rate. Similarly, Black Box claims that Universal failed to pay royalties 

on certain exploitations of the songs governed by the royalty agreements but could 

not point the court to any specific instance where Universal failed to do so.

On appeal, Black Box argues that the district court “gave up” and failed to 

search the record for evidence that Universal did not pay Black Box what it was

owed. But there are limits to how much effort a district court must exert in searching 

the record on a plaintiff’s behalf. See, e.g., Chavez v. Sec’y Fla. Dep’t of Corr., 647 

F.3d 1057, 1061 (11th Cir. 2011) (holding that “district court judges are not required 

to ferret out delectable facts buried in a massive record”); Johnson v. City of Fort 

Lauderdale, 126 F.3d 1372, 1373 (11th Cir. 1997) (“[W]e are not obligated to cull 

the record ourselves in search of facts . . . .”). The district court correctly found that 

it would be a waste of judicial resources to “scour the record” in search of specific 

violations of the publishing agreements where Black Box had not pointed to any 

such violations. The burden to produce and identify evidence of breach is on Black 

Box, not on the court.

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For all twenty-two contracts at issue in this case, Black Box failed to meet its

evidentiary burden. Even construed in the light most favorable to Black Box 

Royalties, the record contains no evidence from which a reasonable jury could find 

that Universal breached any of the contracts. Thus, the district court properly 

granted summary judgment in favor of Universal. We therefore affirm the district 

court’s grant of Universal’s motion for summary judgment and denial of Black 

Box’s Rule 56(d) motion.

AFFIRMED.

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