In the
United States Court of Appeals
For the Seventh Circuit
No. 09-3267
D ARYL M URPHY,
Plaintiff-Appellant,
v.
E DDIE M URPHY P RODUCTIONS,
INCORPORATED , et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 1:08-cv-05170—John W. Darrah, Judge.
A RGUED A PRIL 12, 2010—D ECIDED JULY 1, 2010
Before C UDAHY, P OSNER, and E VANS, Circuit Judges.
E VANS, Circuit Judge. This is an appeal from the dis-
missal of the third lawsuit that Plaintiff Daryl Murphy
has brought against the same group of defendants
arising out of the same set of events. It deals with
whether the district court properly denied a motion for
an extension of time to file an amended complaint. In
order to resolve the current appeal we must first sort
through a fairly complicated procedural history.
2 No. 09-3267
Eddie Murphy, a former cast member on Saturday Night
Live, is a multi-talented comedian, actor, singer, director
and producer. On SNL, he played several memorable
characters including Buckwheat, Mr. Robinson, Professor
Shabazz K. Morton, and Gumby. On film, he’s played
dozens of characters including a clever Detroit detective
(Axel Foley) in Beverly Hills Cop, a street hustler (Billy
Ray Valentine) who outsmarts a pair of Wall Street high
rollers in Trading Places, and an R & B singer (James
“Thunder” Early) backed by a trio of females who ulti-
mately leave him behind in Dreamgirls. Murphy also
was the voice of the donkey in the Shrek movies. He is
the namesake of one of the defendants in this case,
Eddie Murphy Productions, Inc. The other defendants
are Will Vinton-Freewill Entertainment, Inc., Touchstone
Television Productions LLC, Fox Broadcasting Co., Inc.,
Warner Bros. Television, Inc., and Harpo Productions,
Inc. (collectively, Defendants). In 2004, Daryl Murphy (no
relation to Eddie) brought this suit claiming that the
defendants used copyrighted material from his video-
tape to create and later broadcast the animated televi-
sion show The PJs which aired for three years on Fox
and the WB. Eddie Murphy provided the voice for the
protagonist of the show, Thurgood Stubbs, who served
as the superintendent of the Lawrence Hilton-Jacobs
housing projects. The PJs won three Emmy Awards.
Two years after the suit was filed, the defendants moved
for summary judgment. As part of their summary judg-
ment submission, the defendants submitted videotapes
No. 09-3267 3
of episodes of The PJs and two copies1 of Murphy’s video-
tape. In response to the summary judgment motion,
Murphy submitted a comparison DVD with pieces of
his videotape juxtaposed against portions of episodes
from The PJs. In his Local Rule 56.1 response Murphy
admitted that Defendants’ Exhibit A-1 was a true and
correct copy of his videotape. The district court granted
summary judgment to the defendants after viewing
Murphy’s comparison DVD on three independent
grounds: (1) the two works were not substantially sim-
ilar; (2) there was no evidence that the defendants had
access to the videotape; and (3) there was uncontradicted
evidence of prior creation. Murphy, acting pro se, moved
for reconsideration because his court-appointed attorney
only submitted one of five compact disks that showed
various comparisons. The district court denied his
motion to reconsider and his appeal was dismissed.
During the pendency of the appeal of the first suit,
Murphy filed another complaint against the defendants,
making claims arising out of the same events at issue in
the first suit. The district court promptly dismissed the
suit as res judicata.
In October 2008, Murphy filed this suit pro se against
the defendants and others as a Rule 60 motion. Shortly
thereafter, Murphy retained counsel who withdrew the
Rule 60 motion and asked for leave to file an amended
1
They submitted two copies because the copy they received
in discovery (Exhibit A) was different from the copy they
received from the Copyright Office (Exhibit A-1).
4 No. 09-3267
complaint. The district court gave Murphy until April 24,
2009 to file an amended complaint, and the deadline was
not met. At a hearing on April 30, Murphy’s attorney
requested additional time to file the amended complaint.
The district court extended the deadline until June 1.
Murphy’s attorney once again failed to meet the deadline.
Instead of filing an amended complaint on June 1, he
filed a motion on June 5 seeking 60 additional days. He
claimed to need more time to determine whether the
defendants had committed fraud in Murphy’s first suit,
most notably by submitting blank DVDs—instead of
DVDs showing Murphy’s original work. The district
court denied Murphy’s extension and dismissed the
case with prejudice in part because he missed two court-
ordered deadlines, but also because amendment would
have been futile. It is this order from which Murphy
brings the present appeal.
The issue is whether the district court properly denied
Murphy’s motion for an extension of time to file an
amended complaint. Extensions are governed by Rule 6
of the Federal Rules of Civil Procedure, which sets
separate standards for motions filed before and after
the original deadline. A motion filed before the dead-
line may be granted “for good cause,” a motion made
after the time has expired may be granted only if “the
party failed to act because of excusable neglect.” Fed. R.
Civ. P. 6(b)(1)(A)-(B). The district court evaluated
Murphy’s request under the latter standard because he
made his request four days after the deadline had passed.
We review the district court’s order using a deferential
abuse of discretion standard.
No. 09-3267 5
The Supreme Court in Pioneer Investment Services Co. v.
Brunswick Associates Ltd. Partnership, 507 U.S. 380, 395
(1993) listed the factors a district court should consider
when evaluating a claim of excusable neglect, which
include the danger of prejudice to the defendant, and
the reason for the delay. In this case, both factors cut
against granting the time extension. The defendants
would suffer prejudice from delaying the resolution of
this case (recall, the dispute first got off the ground in
2004!) for another 60 days. The district court already
granted one extension. The defendants won summary
judgment in February of 2007 and yet the case still
lingers over three years later. Furthermore, Murphy
has never identified a valid reason for his delay. He
claims not to have learned about the blank videotapes
until late in the proceedings. If this is true, the blame
lies with him because he was served with the defen-
dants’ summary judgment motion—which included the
exhibits—in 2006 on the same day they were filed in
the district court. Therefore, the district court was well
within its discretion to deny Murphy’s motion because
he did not the miss the court-ordered deadline due
to excusable neglect.
The futility of Murphy’s proposed amendment serves
as an additional, independent ground for refusing to
enlarge the time for him to file his amended pleading.
See Campania Management Co., Inc. v. Rooks, Pitts & Poust,
290 F.3d 843, 848-49 (7th Cir. 2002) (“[C]ourts in their
sound discretion may deny a proposed amendment if
the moving party has unduly delayed in filing the
6 No. 09-3267
motion, if the opposing party would suffer undue preju-
dice, or if the pleading is futile.”). In order to succeed in
his motion, Murphy would have to prove by clear
and convincing evidence that his copyright claim was
meritorious, and that because of fraud, he was prevented
from fully presenting his case. Provident Savings Bank
v. Popovich, 71 F.3d 696, 699 (7th Cir. 1995).
Factually, it appears impossible for Murphy to prove
what he alleges, and even if he did, it wouldn’t amount
to fraud. If the defendants submitted blank videotapes,
there still would not be grounds for relief because the
district court made clear that it reached its decision
based on the comparison DVD submitted by Murphy.
Furthermore, if the defendants did in fact submit blank
videotapes, in all likelihood, the district court would
have requested replacement materials or denied the
summary judgment motion for lack of proof. As further
evidence of fraud, Murphy claims that the signature of
one affiant, Mike Mendel, may be forged and his
affidavit is inconsistent with other evidence. Murphy
offers no evidence of forgery—aside from his claim that
the signature looks different—and any inconsistency in
the text of the document would have been clear to the
district court when it was deciding the motion for sum-
mary judgment. Most bizarrely, Murphy’s final evidence
of fraud is that another affiant, Colin Batty, is not a
citizen of the United States and used inconsistent styles
for recording dates. While these things may be true, it’s
not clear how they could be fraud on the court since
they are apparent from the affidavit itself.
No. 09-3267 7
For these reasons, the judgment of the district court is
A FFIRMED.
7-1-10