                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 13a0937n.06

                                        No. 12-5715
                                                                                  FILED
                         UNITED STATES COURT OF APPEALS                      Oct 31, 2013
                              FOR THE SIXTH CIRCUIT                     DEBORAH S. HUNT, Clerk


SAMUEL DAVID MOORE, professionally            )
known as Legendary Soul Man Sam Moore,        )
Inc. and JOYCE ELLEN MOORE,                   )
                                              )
       Plaintiffs-Appellants,                 )
                                              )
and                                           )
                                              )
THE SJM TRUST,                                )
                                              )
       Plaintiff,                             )
                                              )
v.                                            )   ON APPEAL FROM THE UNITED
                                              )   STATES DISTRICT COURT FOR THE
WEINSTEIN COMPANY, LLC, THE, dba              )   MIDDLE DISTRICT OF TENNESSEE
Dimension Films; MGM STUDIOS, INC.;           )
GENIUS PRODUCTS, LLC; CONCORD                 )
MUSI C GROUP, INC.; METRO-                    )
GOLDWYN-MAYER STUDIOS, INC.,                  )
                                              )
       Defendants-Appellees,                  )
                                              )
and                                           )
                                              )
HARVEY WEINSTEIN; BOB WEINSTEIN,              )
                                              )
       Defendants.                            )



       Before: ROGERS and COOK, Circuit Judges; VAN TATENHOVE, District Judge.*




       *
         The Honorable Gregory F. Van Tatenhove, United States District Judge for the Eastern
District of Kentucky, sitting by designation.
No. 12-5715
Moore v. Weinstein Co.


       COOK, Circuit Judge. Plaintiff-appellant Sam Moore, half of the 1960s and ’70s music duo

“Sam & Dave” that sang the well-known songs “Hold On, I’m Comin’” and “Soul Man,” appeals

an adverse judgment on his trademark-infringement and common-law claims against the producers

and distributors of “Soul Men,” a 2008 fictional film starring actors Samuel L. Jackson and the late

Bernie Mac (the “Movie”), and its accompanying soundtrack (the “Soundtrack”). Moore appeals

five claims that center on a common theme: the Movie and Soundtrack infringed his unregistered

trademarks of variations of the phrase “Soul Men,” and appropriated his life story for defendants-

appellees’ pecuniary gain. For the following reasons, we AFFIRM the district court’s grant of

summary judgment.


                                                 I.


       Sam Moore is a renowned entertainer. Signed with his coperformer Dave Prater by Atlantic

Records in 1965, the duo released a 1967 album titled “Sam & Dave Soul Men” that included their

hit single “Soul Man.” Sam & Dave, also known as “Double Dynamite,” recorded music in

Memphis, Tennessee, at the Stax Records company. Though the duo broke up, they reunited during

the early 1980s, performing together for the last time in 1982. Prater died in 1988. After Sam &

Dave dissolved, Moore continued performing using the stage name “Sam Moore ‘The Legendary

Soul Man,’” or some variation thereof. By all accounts, Moore has enjoyed a successful career. He

won a Grammy for “Soul Man,” and the Rock & Roll Hall of Fame inducted Sam & Dave in 1992.

His promoters currently refer to him as the “Legendary Soul Man.”



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       Dimension Films, a division of The Weinstein Company, LLC (“TWC”) acquired the rights

to a screenplay titled “Soul Men” in late 2007. In 2008, Dimension released the Movie, an R-rated

film starring Samuel L. Jackson and Bernie Mac. MGM Studios, Inc. distributed the Movie to

theaters nationwide, Genius Products, LLC manufactured and distributed the DVDs and Blu-rays

pursuant to an agreement to distribute all TWC home videos, and Concord Music Group, Inc.

distributed the Soundtrack, titled “Soul Men The Original Motion Picture Soundtrack,” which

included no Sam & Dave songs.


       In the Movie, Jackson’s and Mac’s characters form two-thirds of a 1960s soul trio named

“Marcus Hooks and The Real Deal.” The trio’s third member, lead singer Marcus Hooks (played

by musician John Legend), leaves the group and pursues an incredibly successful solo career.

Jackson and Mac, however, labor as a duo for a short time before splitting up. The Movie catches

up with the pair in the present, living separate lives, one not having spoken to the other in years.

After Hooks dies, Jackson and Mac reunite in Los Angeles and drive cross-country to perform at

a memorial tribute at the Apollo Theater in New York City. As the duo drives eastward, they

perform in small-town bars and venues. At one stop, they perform Sam & Dave’s song “Hold On,

I’m Comin’.” The Movie ends after the duo arrives in New York City and performs at the memorial.

Moore sees the movie as Jackson and Mac portraying Sam and Dave.


       The Movie’s release prompted Moore, his wife Joyce, and an entity named SJM Trust to sue

the defendants for trademark violations under the Lanham Act, 15 U.S.C. § 1125(a), targeting two



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aspects of the Movie and Soundtrack. First, Moore claimed that the Movie’s title “Soul Men”

infringed his common-law trademarks in the phrases “Soul Men,” “Soul Man,” “The Legendary

Soul Man,” “The Original Soul Man,” and “The Original Soul Men” (collectively, the “marks”).

Second, Moore alleged that the Movie and Soundtrack infringed his interest in (i) the 1967 album

“Sam & Dave Soul Men,” featuring the Sam & Dave single “Soul Man,” and (ii) a 2008

documentary DVD, titled “The Original Soul Men Sam & Dave.” Moore also advanced claims for

trademark dilution, violation of his right of publicity, violation of the Tennessee Consumer

Protection Act, common-law unfair competition, false light invasion of privacy, unjust enrichment,

and civil conspiracy.


       After the district court dismissed Joyce Moore and the SJM Trust, it granted summary

judgment to the defendants on each of Moore’s claims in a thorough, well-reasoned opinion. Moore

timely appeals that judgment as to the following claims: Lanham Act unfair competition, 15 U.S.C.

§ 1125(a); Lanham Act trademark-dilution, 15 U.S.C. § 1125(c); state trademark infringement; state

common-law unfair competition; state consumer protection; and violation of his common-law right

of publicity. After reviewing the complete record and the district court opinion, and evaluating the

parties’ submissions to this court, we determine that the district court properly dispensed with

Moore’s Lanham Act and state unfair-competition claims and further explanation would be

duplicative and serve no jurisprudential purpose. Accordingly, we adopt the district court’s

reasoning from its May 23, 2012, memorandum to affirm the grant of summary judgment to




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defendants on those claims. We now review Moore’s publicity, state-law trademark, and consumer

protection claims.


                                                 II.


A. Standard of Review


       This court reviews the grant of summary judgment de novo, Appoloni v. United States, 450

F.3d 185, 189 (6th Cir. 2006), affirming where no genuine issue of material fact exists and the

moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a). A genuine issue

of material fact exists “if the evidence is such that a reasonable jury could return a verdict for the

nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). We view the

evidence and draw all reasonable inferences in favor of the nonmoving party, see Matsushita Elec.

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986), asking “whether the evidence presents

a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party

must prevail as a matter of law,” Anderson, 477 U.S. at 251–52. “We may affirm the district court’s

determination on any grounds, including grounds not relied upon by the district court.” Handy-Clay

v. City of Memphis, Tenn., 695 F.3d 531, 538 (6th Cir. 2012) (citation and internal quotation marks

omitted).


B. Right of Publicity




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       Moore argued that defendants violated his right of publicity by misappropriating his “name,

image, likeness and persona[]” for use in the Movie (R. 146, Am. Compl. ¶ 103) and for

“commercial exploitation in which [defendants] have a pecuniary interest” (id. ¶ 104). After

conducting a conflict-of-laws analysis, the district court applied Arizona publicity law, which

utilizes the Restatement (Third) of Unfair Competition. (R. 375, Op. & Order at 60.) Finding that

Moore could not establish identity misappropriation, the district court granted summary judgment

to defendants. (Id. at 92.) Moore argues that the court improperly evaluated and failed to consider

relevant evidence.


       The right of publicity protects the nonconsensual use of one’s “name, likeness, or other

indicia of identity for purposes of trade.” Restatement (Third) of Unfair Competition § 46. A viable

right-of-publicity claim usually requires (1) defendant’s use of plaintiff’s identity; (2) the

appropriation of plaintiff’s name or likeness to the defendant’s advantage, commercially or

otherwise; (3) lack of consent; and (4) resulting injury. Lemon v. Harlem Globetrotters Int’l, Inc.,

437 F. Supp. 2d 1089, 1100 (D. Ariz. 2006). And the First Amendment provides an additional

hurdle that, as the Restatement explains, “fundamentally constrain[s]” the right. Restatement (Third)

of Unfair Competition § 47 cmt. c. This court found “an inherent tension between the right of

publicity and the right of freedom of expression under the First Amendment” that becomes

“particularly acute when the person seeking to enforce the right is [] famous.” ETW Corp. v. Jireh

Publ’g, 332 F.3d 915, 931 (6th Cir. 2003). The right of publicity does not proscribe “use of a

person’s identity in . . . entertainment, works of fiction or nonfiction, or in advertising that is

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Moore v. Weinstein Co.


incidental to such uses,” Restatement (Third) of Unfair Competition § 47, including “dissemination

of an unauthorized print or broadcast biography,” or the “[u]se of another’s identity in a novel, play

or motion picture,” Id. cmt. c.


       To help determine “the proper balance [] between the First Amendment and [a plaintiff’s]

intellectual property rights,” in ETW Corp., 332 F.3d at 936, we applied the “transformative

elements test,” set forth by the California Supreme Court in Comedy III Productions, Inc. v. Gary

Saderup, Inc., 21 P.3d 797 (Cal. 2001). Under that test, we weigh the appropriated likeness against

the appropriating work’s expressiveness, evaluating “whether a product containing a celebrity’s

likeness is so transformed that it has become primarily the defendant’s own expression rather than

the celebrity’s likeness.” Comedy III Prods., Inc., 21 P.3d at 809. A “defendant’s own expression”

means “something other than the likeness of the celebrity.” Id. Such “transformed” works lie

beyond the right of publicity’s reach.


       1. Use of Identity in the Movie


       The court’s resolution in ETW informs this analysis. There, despite the defendants’ sale of

a painting clearly depicting professional golfer Tiger Woods celebrating his first victory at the

Masters Golf Tournament in 1997, this court held that the defendant “added a significant creative

component of his own to Woods’s identity,” such that the work contained “significant

transformative elements which make it especially worthy of First Amendment protection and also

less likely to interfere with the economic interest protected by Woods’[s] right of publicity.” ETW

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Moore v. Weinstein Co.


Corp., 332 F.3d at 938. Therefore, even if Moore could demonstrate appropriation, a successful

publicity claim requires the lack of these creative components, akin to a “depiction or imitation of

the celebrity [that] is the very sum and substance of the work in question.” Comedy III Prods., Inc.

21 P.3d at 809.


       In this regard, Moore’s claim is weaker than Tiger Woods’s claim in ETW. We already

explained that the Restatement generally does not protect the use of one’s identity in a movie. See

Restatement (Third) of Unfair Competition § 47 cmt. c. And as we explained when we adopted the

transformative elements test, publicity claims trump the First Amendment if the “artistic expression

takes the form of a literal depiction or imitation of a celebrity for commercial gain, directly

trespassing on the right of publicity without adding significant expression beyond that trespass.”

ETW Corp., 332 F.3d at 935 (emphasis added); cf. Cardtoons, L.C. v. Major League Baseball

Players Assoc., 95 F.3d 959, 969 (10th Cir. 1996) (extending First Amendment protection to

baseball parody cards and noting “[s]peech that entertains, like speech that informs, is protected by

the First Amendment”). Without a doubt, the Movie added significant expressive elements to any

purported use of Moore’s identity.


       2. Moore’s Image in Advertising Inserts


       This First Amendment protection falls away, Moore argues, in the case of the advertising

insert featuring his image that Concord and Genius Products packaged with the Soundtrack’s

compact discs and Genius Products’ DVDs. (R. 342-27, Concord Insert.) The insert’s commercial

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Moore v. Weinstein Co.


purpose, Moore argues, precludes application of the First Amendment’s protections because the

insert has “nothing whatsoever to do with the Movie or Soundtrack.”


       To promote sales of other Concord-owned CDs and DVDs, several pages of the insert, titled

“THE ORIGINAL SOUL MEN ARE AT STAX,” reprinted cover art from various Stax Records

albums, including Otis Redding, Isaac Hayes, Booker T & the MGs, The Staple Singers, Wattstax,

Angie Stone, Lalah Hathoway, Nikka Costa, and a tribute to the band Earth, Wind, and Fire.

Another insert page, captioned “Essential Viewing for your Soul,” featured the images of three

DVDs’ cover art: “Respect Yourself: The Stax Records Story”; “Dreams to Remember: The Legacy

of Otis Redding”; and “The Stax/Volt Revue Live in Norway 1967.” The picture of this last DVD’s

cover, “The Stax/Volt Revue Live in Norway 1967,” looks like a concert promotional flyer

(“Concert Cover”) and displays the names and images of the performers in that 1967 show: “The

Sensational Otis Redding,” “Double Dynamite!! Sam and Dave,” “Arthur Conley,” “Eddie Floyd,”

“The Mar-Keys,” and “Booker T. and the M.G.’s.” Concord Music Group’s logo also appears on

the bottom righthand corner of the insert. These uses, Moore claims, misappropriate his publicity

rights and merit no First Amendment protection. (Appellant Reply Br. at 16.)


       With regard to the Concert Cover, Moore does not dispute that Concord Music Group owns

the rights to promote this video depicting a concert in which he performed. (See R.146, Am. Compl.

¶ 40 n.6 (acknowledging that “Stax filed for bankruptcy in 1975, and certain of the assets of the

company were acquired by Fantasy Records in 1977.”); Appellee Br. at 50 n.27.) See also



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Moore v. Weinstein Co.


Restatement (Third) of Unfair Competition § 46 cmt. f (“Conduct that would otherwise infringe the

personal or commercial interests protected by the rights of privacy and publicity is not actionable

if the conduct is within the scope of consent given by the holder of the right.”). Furthermore, the

insert title page, which states “THE ORIGINAL SOUL MEN ARE AT STAX,” clearly refers to the

numerous soul albums depicted therein, of which the Concert Cover—featuring Sam and Dave,

identified as “Double Dynamite”—is but one. (See R. 342-27, Concord Insert, ID 9672, 9687–88.)

Moore offers no evidence that the title page causes confusion. Read in context, no reasonable juror

would mistake this “Soul Men” reference for Sam & Dave.1 See Restatement (Third) of Unfair

Competition § 46 cmt. d (“[I]n the case of an alleged visual likeness, the plaintiff must be reasonably

identifiable from the photograph or other depiction.”). And the fact that the soundtrack producers

marketed their product to fans of a variety of soul artists, including Sam & Dave, does not suggest

otherwise. (See R. 342-27.) Because Moore fails to show a genuine issue on this publicity claim,

we affirm the district court’s grant of summary judgment.


C. State Trademark Dilution


       Moore also sued for state trademark dilution under the Tennessee Trademark Act (TTMA),

Tenn. Code Ann. § 47-25-513. When defendants argued that Arizona law governed these claims,

Moore responded that the court need not engage in a conflict-of-laws analysis because no conflict


       1
        We note that a different version of the insert included the “Soul Men” title and the Concert
Cover, along with all of the other soul artists, on a single page. (See R. 342-27, ID 9672.) We
discern no substantive difference between the two inserts.

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Moore v. Weinstein Co.


existed between Tennessee and Arizona trademark statutes. (R. 340, Pl.’s Opp’n Def.’s Mot. Summ.

J. at 16 n.25; R. 375, Op. & Order at 56 n.28.) Exercising diversity jurisdiction, we apply the forum

state’s choice- of-law rules. See, e.g., Gahafer v. Ford Motor Co., 328 F.3d 859, 861 (6th Cir.

2003). Under Tennessee law, “a conflict between the laws of the states at issue is a necessary

predicate to deciding which state’s (or states’) laws should govern the various issues presented in

the case.” Gov’t Emps. Ins. Co. v. Bloodworth, No. M2003-02986-COA-R10-CV, 2007 WL

1966022, at *29 (Tenn. Ct. App. June 29, 2007). On de novo review, we first determine whether

a conflict exists between the Arizona and Tennessee trademark statutes.


       The district court erred when it found “a conflict of laws relative to the . . . [state trademark]

claims”; in fact, Tennessee and Arizona have identical trademark-dilution statutes. Compare Tenn.

Code Ann. § 47-25-513 (“Injury to business reputation; dilution”), with Ariz. Rev. Stat. Ann. § 44-

1448.01 (“Injury to business reputation; dilution”). The two statutes mirror each other, virtually

word for word. The district court thus improperly dismissed Moore’s TTMA claim on the grounds

of a conflict.2 As the appellees point out, though, Moore’s state trademark-dilution claims still fail

because both Arizona and Tennessee law requires ownership of a mark that is “famous in this state.”

Ariz. Rev. Stat. Ann. § 44-1448.01; Tenn. Code Ann. § 47-25-513. And the “famousness” factors




       2
         Moore’s briefing incorrectly identifies Arizona Revised Statute § 44-1448 as Arizona’s
statutory equivalent to his Tennessee trademark claim. Section 44-1448 actually controls the
cancellation of state registrations. Arizona Revised Statute § 44-1448.01 governs trademark
dilution.

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Moore v. Weinstein Co.


laid out by the state statutes track the Lanham Act’s famousness factors that Moore could not satisfy

for his federal trademark-dilution claim.


       The Lanham Act “famousness” factors substantially overlap with Tennessee’s “famousness”

evaluation. Compare Tenn. Code Ann. § 47-25-513(a)(1)–(8), with 15 U.S.C. § 1125(c). In fact,

the only factor that Tennessee relies on that the Lanham Act omits—the nature and extent of use of

same or similar mark by third parties—weighs against Moore. The district court found at least

thirty-four third-party musical albums, currently available for purchase, that either consist of or

incorporate the phrases “soul men” or “soul man.” (R. 375, Op. & Order at 36–37.) Although the

scope of the famousness inquiry under state law requires courts to evaluate in-state famousness, it

still turns on the marks’ fame—not Moore’s. See Tenn Code Ann. § 47-25-513(a) (protecting a

“mark which is famous in this state” once “the mark has become famous”). As with his federal

trademark-dilution claim, Moore urges that his personal fame requires reversal. (Appellant Br. at

60 (“Clearly, for Sam Moore, whose career, life and fame in Tennessee is well documented . . . he

should be credited with at least raising a triable issue of fame . . . .”).) Without evidence of the

marks’ fame, however, we affirm the district court’s dismissal of Moore’s TTMA claim.


D. State Consumer-Protection Claims


       Moore brought two claims under the Tennessee Consumer Protection Act (TCPA), Tenn.

Code Ann. §§ 47-18-101 et. seq. First, he alleged that in connection with the marketing and

advertising of the Movie, Genius Products’ DVDs and Concord’s Soundtrack “intentionally and

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willfully caused a likelihood of confusion or misunderstanding” regarding whether Sam Moore

sponsored the Movie and Soundtrack. (R. 146, Am. Compl. ¶ 138.) Though Moore does not

identify the precise subsection of the Tennessee Code, we review his claim under the most

analogous section, § 47-18-104(b)(2) (“Causing likelihood of confusion or of misunderstanding as

to the source, sponsorship, approval or certification of goods or services.”).


       Moore argues that the district court should have applied Tennessee law, rather than

“summarily dismiss” his claim for his failure to brief the choice-of-law issue. (Appellant Br. at 59;

see R. 375, Op. & Order at 62.) But as appellees note, even if Moore had responded to defendants’

choice-of-law argument and his preferred Tennessee law did apply, “[t]he same analysis that applies

to the federal Lanham Act claims also applies to the state claims of unfair competition under . . . the

Tennessee Consumer Protection Act.” (McDonald’s Corp. v. Shop at Home, Inc., 82 F. Supp. 2d

801, 816 (M.D. Tenn. 2000).


       In response to this argument, we adopt the district court’s reasoning that under Rogers v.

Grimaldi, 875 F.2d 994, 999 (2d Cir. 1989), the First Amendment limits Moore’s protectable

interests in his purported marks. And we adopt its decision that Moore’s “competing titles” claim

established no likelihood of confusion. (See R. 375, Op. & Order at 64–67, 70–78.) These

determinations, paired with Moore’s decision not to appeal the district court’s no-likelihood-of-

confusion holding and his failure to cite to evidence establishing confusion, foreclose his TCPA

likelihood-of-confusion claim.



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       Moore’s pleadings doom his second TCPA claim as well. He alleges that the Genius DVDs

and the Concord Soundtrack “intentionally and willfully made, published, disseminated, circulated,

and placed before the purchasing public advertisements containing false, deceptive and misleading

statements about Sam Moore’s affiliation, connection or association with the Movie.” (R. 146, Am.

Compl. ¶ 137.) Again, Moore fails to identify the precise TCPA violation, but we nevertheless

analyze his claim under Tenn. Code Ann. § 47-18-104(b)(5) (barring “[r]epresenting that goods or

services have sponsorship [or] approval . . . that they do not have”).


       When defendants argued that Arizona’s consumer-protection law should apply instead of

Tennessee’s, Moore offered only a footnote explaining that his right-of-publicity choice-of-law

argument “applies equally” to the consumer-protection choice-of-law challenge. (R. 340, Pl.’s Resp.

Def.’s Mot. Summ. J. at 16 n.25.) As the district court noted, however, Moore’s right-of-publicity

claim and his consumer-protection claims are “substantively distinct.” (R. 375, Op. & Order at 56

n.28.) Accordingly, left with no argument on why Arizona law should not apply to Moore’s

consumer-protection claims, and instructed by Moore to rely on his publicity choice-of-law

argument, the district court found that Arizona law should apply. (Id. at 62.) Having been instructed

by Moore to rely on his publicity choice-of-law analysis, the district court understandably declined

to survey Arizona law for a corresponding Arizona consumer-protection provision and pursue its

own conflict-of-laws analysis.




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        Moreover, even applying Tennessee law, Moore’s district court pleadings never responded

to defendants’ merits-based attacks on his Tennessee consumer-protection claim. At summary

judgment, defendants challenged both the choice of Tennessee law and the merits of his Tennessee

claim, pointing to Tennessee cases explaining that the TCPA protects “consumers and legitimate

business enterprises from those who engage in unfair or deceptive acts or practices . . . in part or

wholly within this state.” Bennett v. Visa U.S.A. Inc., 198 S.W.3d 747, 753 (Tenn. Ct. App. 2006)

(citing Tenn. Code. Ann. § 47-18-102). Missing from Moore’s claim, defendants argued, was any

“admissible evidence that [the] Defendants’ actions deceived or injured Tennessee consumers.” (R.

306, Def.’s Mot. Summ. J. at 13.) Moore never responded to defendants’ merits-based attack on his

TCPA claim, offering only the choice-of-law footnote, leaving defendants’ merits-based attack

unrefuted.


        Moore compounds this error on appeal. His opening brief disputes only the district court’s

choice-of-law dismissal, asking us to reinstate his TCPA claim so Moore can “proceed to enforce

[his] claim[].” (Appellant Br. at 58–59.) But faced with summary judgment, Moore needed to show

that a genuine issue of material fact existed regarding this TCPA claim. Fed. R. Civ. P. 56(c)(1)

(obliging “[a] party asserting that a fact . . . is genuinely disputed [to] support the assertion by . . .

citing to particular parts of materials in the record . . . or . . . showing that the materials cited do not

establish the absence or presence of a genuine dispute”); Horton v. Potter, 369 F.3d 906, 909 (6th

Cir. 2004) (“Once the moving party has met its burden of production, the nonmoving party must go

beyond the pleadings and by . . . affidavits, or by the depositions, answers to interrogatories, and

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admissions on file, designate specific facts showing that there is a genuine issue for trial.”) (citation

and internal quotation marks omitted); see also Tucker v. Tennessee, 539 F.3d 526, 531 (6th Cir.

2008) (explaining that the court “no longer has the duty to search the entire record to establish that

it is bereft of a genuine issue of material fact” (citation omitted)). With Moore’s failure to brief and

argue the choice-of-law issue at the district court, his failure to respond to defendants’ merits

challenge at summary judgment or on appeal, we find no error in the district court’s dismissal of his

second consumer-protection claim.


                                                  III.


        For these reasons, we AFFIRM.




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