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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

CURTIS TREY SEASTRUNK, §

 §

Plaintiff/Counter-Defendant, §

 §

v. §

 §

DARWELL INTEGRATED §

TECHNOLOGY, INC., §

 §

Defendant/Counter-Plaintiff, §

 §

DTS INTERNATIONAL INC., d/b/a §

DARWELL TECHNOLOGY SYSTEMS, §

 §

Defendant. §

 § Civil Action No. 3:05-CV-0531-BF

 § ECF

DARWELL INTEGRATED §

TECHNOLOGY, INC., §

 §

Third Party Plaintiff, §

 §

v. §

 §

CURTIS TREY SEASTRUNK and §

SITE MONITORING SOLUTIONS, §

INC., §

 §

Defendants. §

MEMORANDUM OPINION AND ORDER

Pursuant to the District Court’s Order of Transfer (doc. 35), this is now a consent case before

the United States Magistrate Judge. Before the Court is Plaintiff’s and Third Party Defendant’s

Motion for Combined Traditional and No Evidence Motions for Summary Judgment (doc. 108).

Defendant Darwell Integrated Technology, Inc. (“DIT”) filed a response on December 20, 2007
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(doc. 111). Plaintiff Curtis Trey Seastrunk (“Seastrunk”) filed his reply on January 10, 2008 (doc.

113). DIT filed a response to Seastrunk’s reply brief (doc. 115.) Seastrunk objected to this response

because it was not filed in accordance with Local Rule 7.1. Because Seastrunk did not obtain leave

of the Court to file a sur-reply, the Court will not consider DIT’s response to Seastrunk’s reply.

 BACKGROUND

Seastrunk brought this action against DIT for copyright infringement. Daniel Fuhrmann

(“Fuhrmann”) created two source codes known as the Liebert Protocol Convertor (“Convertor”) and

the Protocol Board Addressing Decode (“Decode”). (Pl.’s Am. Compl. at 3.) On August 8, 2004,

Fuhrmann executed an Agreement for Assignment of Copyright and assigned the copyright to the

Convertor and the Decode to Seastrunk. (Id.) This agreement was clarified through an amended

agreement on August 17, 2005. (Id.) Seastrunk registered the copyright for the Convertor on

September 20, 2004 and registered the Decode on January 13, 2005. (Id. at 3–4.) Seastrunk claims

that DIT is infringing his copyright by using the Convertor and the Decode in DIT’s site monitoring

programs. (Pl.’s Br. Summ. J. at 5.) Seastrunk has moved for summary judgment on his copyright

claim against DIT and on all of DIT’s counterclaims against Seastrunk. 

STANDARD OF REVIEW

The Court should only grant summary judgment if there is “no genuine issue as to any

material fact” and “the moving party is entitled to judgment as a matter of law.” Celotex Corp. v.

Catrett, 477 U.S. 317, 323 (1986). If the nonmovant bears the burden of proof at trial, the summary

judgment movant may satisfy his burden by pointing to the absence of evidence supporting the

nonmovant’s case. Id. At this point, the nonmovant must show that summary judgment is not

appropriate by going beyond the pleadings to demonstrate “specific facts showing that there is a
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genuine issue for trial.” Id. Mere conclusory allegations or denials unsupported by specific facts

are not enough. Id. Courts ruling on summary judgment motions “must review all of the evidence

in record, but make no credibility determinations or weigh any evidence.” Peel &Co., Inc. v. The

Rug Market, 238 F.3d 391, 394 (5th Cir. 2001). “In reviewing all the evidence, the court must

disregard all evidence favorable to the moving party that the [fact finder] is not required to believe,

and should give credence to evidence favoring the nonmoving party as well as to evidence

supporting the moving party that is uncontradicted and unimpeached.” Id.

ANALYSIS

Seastrunk’s motion contains two types of summary judgment. First, Seastrunk seeks

“traditional” summary judgment against DIT on copyright infringement and on DIT’s counterclaims

of copyright infringement and trademark infringement. Second, Seastrunk contends that his “no

evidence” motion for summary judgment should be granted on DIT’s remaining counterclaims. The

Court will first consider Seastrunk’s “no evidence” motion for summary judgment. 

A. “No Evidence” Summary Judgment

Seastrunk argues that summary judgment is proper on DIT’s claims for conversion, breach

of fiduciary duty, Texas Theft Liability Act, copyright infringement, trade secret misappropriation,

civil conspiracy, tortious interference with existing contracts, unfair competition, trademark

infringement, and temporary restraining order because there is no evidence that supports these

claims. In support of his motion, Seastrunk lists the elements of the above mentioned claims and

then states that “there is no evidence to support any of these essential elements, and the Seastrunk

Parties are entitled to summary judgment on the DIT parties’ [claims].” (See Pl.’s Br. Summ. J. at

12–16.) Seastrunk contends that a “no evidence” summary judgment motion differs from the
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“traditional” summary judgment motion. Seastrunk asserts that listing the elements and stating that

there is no evidence to support the elements satisfies his burden of proof for a “no evidence”

summary judgment motion, and that the burden shifts to DIT to present specific evidence showing

a genuine issue of material fact. 

The Court does not recognize two distinct types of summary judgment. As stated above,

summary judgment should only be granted if there is “no genuine issue as to any material fact” and

“the moving party is entitled to judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S.

317, 323 (1986). Seastrunk correctly notes that “the moving party may support its motion for

summary judgment by submitting evidence in an attempt to negate an essential element of the nonmovant’s claim or by pointing out that there is no evidence to support an essential element of the

non-movant’s claim.” (Pl.’s Br. Summ. J. at 11 (citing Shaw v. Broadcast.com, Inc., No. 3:98-CV2017-P, 2005 WL 2095770, *2 (N.D. Tex. August 30, 2005).) However, while the court in Shaw

at one point refers to the motion as a “no-evidence motion for summary judgment,” the court is

merely distinguishing between a moving party who submits evidence to negate an essential element

and one who points out that there is no evidence to support an essential element by directing the

court to “portions of the record that demonstrate such an absence.” Shaw, 2005 WL 2095770, *2.

The Shaw court, in using this language, is not creating a second type of summary judgment; it

merely provides the party with a choice of how to prove there is no genuine issue of material fact.

Moreover, the sentence preceding the one Seastrunk quoted from Shaw elaborates on the

movant’s burden when pointing out that there is no evidence supporting an essential element. The

court in Shaw states, “[t]he moving party bears the burden of informing the district court of the basis

for its belief that there is an absence of a genuine issue of fact for trial, and of identifying those
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portions of the record that demonstrate such an absence.” Id. The moving party, therefore, must

point to evidence in the record that shows there is no evidence to support one or all of the essential

elements of the non-moving party’s claim. There is a difference between pointing out that there is

no evidence by making a conclusory assertion and pointing out there is no evidence by discussing

what the record shows. In other words, the moving party must show that the evidence currently in

the record does not show a genuine issue of material fact. It is only after this is shown that the

moving party satisfies its burden, and the burden shifts to the non-moving party to go beyond the

pleadings to provide additional evidence demonstrating a genuine factual dispute.

Seastrunk also cites to the court’s decision in Freeman v. Jackson, No. 4:06-CV-516-A, 2007

WL 2219440 (N.D. Tex. Aug. 1, 2007) to support the concept of a distinct “no evidence summary

judgment” standard. The court, in Freeman, also states that the moving party can “discharge its

burden by pointing out the absence of evidence to support one or more essential elements of the nonmoving party’s claim ‘since a complete failure of proof concerning an essential element of the

nonmoving party’s case necessarily renders all other facts immaterial.’” Freeman, 2007 WL

2219440, *2 (citing Celotex Corp., 477 U.S. at 323–25). However, like Shaw, the court did not

create a new summary judgment standard. The moving party, while not needing to produce

evidence, must at least identify portions of the record that demonstrate an absence of evidence. It

is not sufficient to merely list the elements of the claim and state that there is no evidence to support

the elements. This is the type of conclusory assertion the court has said would not satisfy the

summary judgment burden. Seastrunk, in doing so, fails to meet the initial burden required of the

moving party in a motion for summary judgment. Accordingly, Plaintiff’s No Evidence Motion for

Summary Judgment on Defendant’s claims for conversion, breach of fiduciary duty, Texas Theft
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Liability Act, copyright infringement, trade secret misappropriation, civil conspiracy, tortious

interference with existing contracts, unfair competition, trademark infringement, and temporary

restraining order is DENIED. 

B. “Traditional” Summary Judgment

Seastrunk also contends that summary judgment is proper on Seastrunk’s copyright

infringement claim against DIT and DIT’s copyright and trademark claims against Seatrunk. Instead

of listing the elements of copyright infringement and asserting there is no evidence, Seastrunk refers

to the evidence directly and argues that no genuine issue of material fact exists on any of the

elements. 

1. Seastrunk’s Copyright Infringement Claim against DIT

In order to prevail on a claim for copyright infringement, the plaintiff must prove (1)

ownership of a valid copyright and (2) that “the defendant copied constituted elements of the

plaintiff’s work that are original.” Sony Pictures Home Ent’m, Inc. v. Lott, 471 F. Supp. 2d 716

(N.D. Tex. 2007). Because direct evidence of copying is not often available, “factual copying may

be inferred from (1) proof that defendant had access to copyrighted work prior to creation of

infringing work and (2) probative similarity.” Peel & Co., Inc. v. The Rug Market, 238 F.3d 391,

394 (5th Cir. 2001). “To determine whether an instance of copying is legally actionable, a side-byside comparison must be made between the original and the copy to determine whether a layman

would view the two works as ‘substantially similar.’” Id. “Although this question typically should

be left to the factfinder, summary judgment may be appropriate if the court can conclude, after

viewing the evidence and drawing inferences in a manner most favorable to the nonmoving party,

that no reasonable juror could find substantial similarities of ideas and expression.” Id. 
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In considering whether Seastrunk owns a valid copyright, there seems to be some confusion

over what exactly Seastrunk claims DIT infringed. Seastrunk contends that DIT infringed two

copyrighted pieces of code known as the Decode and the Convertor. As proof of copyright

ownership for the Decode and Convertor, Seastrunk points to its Certificates of Registration. DIT

does not appear to challenge the validity of the Certificates of Registration, and Seastrunk does not

claim to have ownership beyond what is registered by these certificates. Therefore, the Court finds

that Seastrunk owns a valid copyright for the source code listed in the certificates of registration.

After showing ownership of a valid copyright, Seastrunk must prove that DIT violated that

copyright by making unauthorized copies of the protected work. Seastrunk contends that the

Convertor is used with DIT’s site monitoring programs called MiCore, ProCore, and Beacon. (Pl.’s

Br. Summ. J. at 5.) Seastrunk also claims that DIT uses the Decode with its site monitoring

program Beacon. (Id.) DIT does not dispute that it uses the site monitoring programs MiCore,

ProCore, and Beacon. (Id. at Ex. 3, App. 37.) There is also no dispute that DIT obtained MiCore

and SitePro from DIT employees who had previously worked for DTS and brought the software to

DIT. (Id. at Ex. 3, App. 30.) The dispute, therefore, centers around whether these programs contain

the Convertor and Decode. Seastrunk, in his reply brief, claims that it is unnecessary to determine

if there is a substantial similarity between the Convertor and Decode and the source codes used in

DIT’s site monitoring programs because DIT committed comprehensive literal copying of the

Convertor and Decode. In support of this argument, Seastrunk offers his own affidavit in which he

states that he “burned parts of the Fuhrmann Code, including the Convertor and the Decode, onto

computer boards to be used in site monitoring products and equipment.” (Id. at Ex. 2, App. 5.) 

This evidence, however, is contradicted by DIT’s corporate representative, Sheila Darisse.
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Ms. Darisse, in her deposition, was asked if DIT claims any rights to the code written by Mr.

Fuhrmann. (Id. at Ex. 3, App. 38.) Ms. Darisse responded that DIT does not use the code, and that

she did not believe they claimed any right to it. (Id.) Under further questioning, Ms. Darisse was

asked if she had any knowledge as to whether the code written by Mr. Fuhrmann was included in

any of the code brought to DIT by former DTS employees. (Id.) Ms. Darisse stated that she did not

have any knowledge of that. (Id.) While this may affect Ms. Darisse’s credibility, it does not

change the fact that genuine issues of material fact exist. The Court’s role on summary judgment

is not to weigh the evidence or determine credibility. A reasonable trier of fact could believe Ms.

Darisse and find that the protected codes are not included in the site monitoring programs.

Accordingly, the Court finds that there is a question of material fact as to whether DIT directly

copied Seastrunk’s protected work in its site monitoring programs.

While Seastrunk claims that it is unnecessary to show indirect copyright infringement

because, as stated above, he believes there is sufficient evidence of comprehensive literal copying,

Seastrunk offers evidence of indirect copying as well. Accordingly, because the Court finds that

there is a genuine issue of material fact regarding comprehensive literal copying, the Court will

consider whether Seastrunk can succeed on his motion for summary judgment by showing indirect

copying. Seastrunk argues that the expert report and affidavit of Steve Widom (“Widom”) shows

indirect copying by DIT. Widom, in his report and affidavit, states that after reviewing the

confidential codes of both parties, it is his expert opinion that there is a substantial similarity

between the codes and that the code produced by DIT was copied from the code produced by

Seastrunk. (Pl.’s Br. Summ. J. at Ex. 1, App. 2.) Widom also states that it was unnecessary to

obtain the specific subdirectory locations for the Convertor or Decode to determine that there was
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a substantial similarity between the Seastrunk’s and DIT’s codes. (Id.)

DIT disputes Widom’s findings and opinion that there is a substantial similarity between the

codes and that DIT copied Seastrunk’s code. In support of this argument, DIT offers the rebuttal

report of Professor Judy Etchison (“Etchison”). (Def.’s Resp. Ex. 9.) It is Etchison’s opinion that

Widom disregarded extensive dissimilarities between the two codes and used criteria not generally

accepted in the computer industry in forming his opinion about any similarities between the two

codes. (Id.) Etchison claims that Widom failed to take into account the real reasons for the

similarities, which are “hardware requirements, functional requirements, well-known programming

constructs, and industry standards of business.” (Id. at 9.) Moreover, Etchison states that Widom’s

report includes a comparison of source codes that are not within the scope of this case. (Id. at 5.)

 As stated earlier, the trier of fact is usually responsible for determining substantial similarity. This

question is only taken from the fact finder when no reasonable trier of fact could find otherwise. A

reasonable fact finder could find that Seastrunk failed to prove indirect copying. 

The conflicting expert opinions create a genuine issue of material fact as to whether there

is substantial similarity between Seastrunk’s and DIT’s code. Because a genuine issue of material

fact remains as to whether DIT engaged in comprehensive literal copying of Seastrunk’s copyright,

and whether the codes are substantially similar, the Court DENIES Seastrunk’s motion for summary

judgment on Seastrunk’s copyright infringement claim. 

2. DIT’s Copyright Claim against Seastrunk

Seastrunk also claims to be entitled to summary judgment on DIT’s copyright claim against

Seastrunk. Seastrunk does not challenge the validity of DIT’s copyright, but argues that Ms.

Darisse, DIT’s corporate representative, admitted in her deposition that DIT is unaware of any
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similarities between Seastrunks’s code and DIT’s code. (See Pl.’s Br. Summ. J. at Ex. 6, App. 46.)

In response to this motion, DIT argues that Ms. Darisse is unable to identify similarities between

Seastrunk’s code and DIT’s code because she does not have access to Seastrunks’s code due to the

April 27, 2007 protective order entered by this Court. DIT claims that if the same question was

asked to Seastrunk, he also would not be able to identify the similarities between the two codes. As

a result, DIT contends that Seastrunk has not pointed to the absence of a genuine issue of material

fact, which would shift the burden to DIT. The Court agrees. Ms. Darisse’s “opinion” was not put

into a context that would allow her to know the appropriate legal standard for evaluating whether

the source codes were substantially similar. Seastrunk failed to meet its initial burden of showing

that there is no genuine issue of material fact. Accordingly, Seastrunk’s motion for summary

judgment on DIT’s copyright claim is DENIED.

3. Trademark Infringement

Finally, Seastrunk also claims that he is entitled to summary judgment on DIT’s trademark

infringement claim. DIT has admitted that it does not claim a trademark in Site Monitoring

Solutions, and therefore, has abandoned its claim. Accordingly, the Court GRANTS Seastrunk’s

motion for summary judgment on DIT’s trademark infringement claim because there is no genuine

issue of material fact.

CONCLUSION

For these reasons, the Court DENIES Seastrunk’s motion for summary judgment regarding

DIT’s claims for conversion, breach of fiduciary duty, Texas Theft Liability Act, copyright

infringement, trade secret misappropriation, civil conspiracy, tortious interference with existing

contracts, unfair competition, trademark infringement, and temporary restraining order . Moreover,
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the Court DENIES Seastrunk’s motion for summary judgment on his copyright infringement claim

against DIT and on DIT’s copyright infringement claim against Seastrunk. Finally, the Court

GRANTS Seastrunk’s motion for summary judgment on DIT’s trademark infringement claim and

dismisses this claim with prejudice.

SO ORDERED. January 22, 2008.

_____________________________________

PAUL D. STICKNEY

UNITED STATES MAGISTRATE JUDGE