Case 3:16-cv-00068-CWR-FKB Document 3 Filed 03/24/16 Page 1 of 28

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
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WARNOCK AND ASSOCIATES, LLC,

and RUDOLPH M. WARNOCK, JR., an
individual,

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Plaintiffs,
v.
MADISON COUNTY, MISSISSIPPI,
DANIEL B. GUILLET, P.E., individually
and in his official capacity as Madison
County Engineer, TREY BAXTER,
individually and in his official capacity as
Madison County Supervisor, SHEILA
JONES, individually and in her official
capacity as Madison County Supervisor,
DAVID BISHOP, individually and in his
official capacity as Madison County
Supervisor, GERALD STEEN,
individually and in his official capacity as
Madison County Supervisor, and PAUL
GRIFFIN, individually and in his official
capacity as Madison County Supervisor.
Defendants.

CAUSE NO.: 3:16-cv-00068-CWRFKB

FIRST AMENDED COMPLAINT

(INJUNCTIVE RELIEF DEMANDED)
(JURY TRIAL DEMANDED)
COME NOW the Plaintiffs Warnock & Associates, LLC, and Rudolph M. Warnock, Jr.,
and file this their First Amended Complaint against Defendants Madison County, Mississippi
(Madison County or the County), Dan Guillet, P.E., and Madison County Supervisors Trey
Baxter, Sheila Jones, David Bishop, Gerald Steen, and Paul Griffin, and in support thereof state as
follows:

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I.

NATURE OF THE ACTION, PARTIES, JURISDICTION AND VENUE

1. This is an action for infringement of copyright in violation of the Copyright Act, 17 U.S.C.
101 et seq., and for injunctive, declaratory and equitable relief, and for breach of contract
and bad faith.
2. Plaintiff Warnock & Associates, LLC, is a Mississippi limited liability company with its
principal place of business in Hinds County, Mississippi.
3. Plaintiff Rudolph Rudy M. Warnock, Jr., P.E., is an individual adult resident of Madison
County, Mississippi.
4. Defendant Madison County, Mississippi, is a political entity created by the constitution
and laws of the State of Mississippi.
5. Defendant Daniel Dan B. Guillet is an individual adult resident of Madison County,
Mississippi, and County Engineer of Madison County.
6. Defendant Trey Baxter is an individual adult resident of Madison County, Mississippi and
member of the Madison County Board of Supervisors.
7. Defendant Sheila Jones is an individual adult resident of Madison County, Mississippi and
member of the Madison County Board of Supervisors.
8. Defendant David Bishop is an individual adult resident of Madison County, Mississippi
and member of the Madison County Board of Supervisors.
9. Defendant Gerald Steen is an individual adult resident of Madison County, Mississippi and
member of the Madison County Board of Supervisors.
10. Defendant Paul Griffin is an individual adult resident of Madison County, Mississippi and
member of the Madison County Board of Supervisors.

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11. This Court has federal question jurisdiction pursuant to 28 U.S.C. 1331, 1338(a), and
1367.
12. This Court is the proper venue for the instant dispute pursuant to 28 U.S.C. 1391 and
1400(b) because Defendants reside within this judicial district and division and/or have
committed acts of infringement within this judicial district and division.
13. Defendants do not have sovereign immunity and are amenable to suit in this Court. The
materials here in issue fall within the national protection provided by the Copyright Act
and do not implicate the Mississippi Tort Claims Act. 17 U.S.C. 511; 17 U.S.C. 301;
28 U.S.C. 2201; see also U.S. Const. Art. VI cl. 2 (the Supremacy Clause); Richard
Anderson Photography v. Brown, 852 F.2d 114 (4th Cir. 1989). Furthermore, suits for
injunctive and declaratory relief and for breach of an express contract do not implicate the
Mississippi Tort Claims Act.
14. Defendants do not have sovereign immunity under the Eleventh Amendment and are
amenable to suit in this Court, as counties are not considered arms of the state for purposes
of the Eleventh Amendment and Defendants can satisfy any monetary judgment without
burdening the State of Mississippis treasury. See, e.g., Black v. N. Panola Sch. Dist., 461
F.3d 584 (5th Cir. 2006).
II.

FACTUAL ALLEGATIONS

15. The allegations of the foregoing paragraphs are incorporated as if fully set forth herein.
16. Plaintiff Warnock and Associates, LLC (W&A) is a Mississippi engineering firm owned
by Plaintiff Rudy Warnock (Warnock). Warnock has a civil engineering degree from
Mississippi State University.

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17. Plaintiffs have worked on numerous construction projects for Defendant Madison County,
Mississippi, including serving as County Engineer for over a decade.
18. As part of providing these engineering services, W&A and/or Warnock entered into several
different contracts with Madison County, covering all the work performed by W&A and/or
Warnock on construction projects throughout the county.
19. All work performed by Plaintiffs was authorized by the Madison County Board of
Supervisors, and properly entered in the Minutes.
20. Plaintiffs are owed monies on an estimated thirty-five (35) construction projects.
21. A total balance in the principal amount of approximately $1,448,481.28 1 is currently due
to Plaintiffs from Madison County for work performed under these contracts, which can
be broadly grouped into three (3) categories: (i) Project-Specific contracts (principal
balance of approximately $1,041,284.08 2; seven (7) projects); (ii) General Engineering
Services contract projects (principal balance of $163,013.20; fifteen (15) projects); and (iii)
State Aid contracts (principal balance of approximately $244,184.00; thirteen (13)
projects). 3

Excluding pre-judgment and post-judgment interest, attorneys fees, costs, and other damages.

Bozeman Road is one of these seven projects. Plaintiffs engineering fee for the original plan on Bozeman
Road was approximately $840,000 based on roughly $12,000,000 estimated construction cost. The redesign of the project to widen the road and add a median pursuant to federal and state requirements
increased the estimated construction cost to $20,405,000, resulting in an engineering fee totaling
approximately $1,428,350. Plaintiffs completed 98% of that work prior to their termination, and therefore
Madison County owes Plaintiffs a total of $1,399,783 for the Bozeman Road work. Madison County has
paid $670,000 for the work, leaving a remaining balance due Plaintiffs in the amount of $729,783, of which
$151,200 has been invoiced. Accordingly, this amount of $1,041,284.08 includes the additional $578,583
on Bozeman Road project that was not invoiced prior to litigation.
3

Inasmuch as the amounts owed on these State Aid projects are based on cost of construction, the exact
amounts owed on these State Aid projects will be determined at trial, after final construction costs are
known. The contracts provide for 4.8% of construction cost to be paid for design, and 7.2% for construction

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22. The General Engineering Services contract, and some of these Project-Specific contracts
were recently terminated by the County, thereby also terminating any license or right to
use the copyrighted plans, or any other intellectual property belonging to Plaintiffs.
23. For the State Aid contracts, and for the remaining Project-Specific contracts, the County
breached the contract by its failure and refusal to pay the contractual amounts owed,
thereby also terminating any license or right to use the copyrighted plans, or any other
intellectual property belonging to Plaintiffs.
24. Defendants have given Plaintiffs no assurances of payment for their work on any of these
thirty-five (35) construction projects.
25. To the contrary, Defendants have refused to pay Plaintiffs for their work.
PROJECT-SPECIFIC CONTRACTS
26. Some projects were assigned their own separate, project-specific contracts.
27. Relevant to this lawsuit, since April 2011, Warnock and Madison County have entered into
at least seven (7) project-specific contracts for work in Madison County: the North
Highland Colony Parkway (Exhibit A), Yandell Road Reconstruction (Exhibit B),
Bozeman Road (Exhibit C), Reunion Phase III-A (Exhibit D), Calhoun Station (Exhibit
E), Reunion Parkway II (Exhibit F), and Gluckstadt Road projects (Exhibit G). 4
28. The language of these seven (7) Project-Specific contracts are nearly identical. The
following language found in each Project-Specific contract is relevant to Plaintiffs claims:

administration, for a total of 12% of final construction costs. Under the Project-Specific contracts between
Plaintiffs and Madison County, Plaintiffs are paid 7% for design, and 7% for contract administration.
4

Page 2 of the Project Specific Agreements represents that the Agreement is made by and between the
Madison County Board of Supervisors and Rudy Warnock, P.E, Warnock & Associates. On information
and belief, in following with industry rule and custom, a specific individual (in this case, Rudy Warnock)
is listed as the engineer of record on project-specific contracts, though the engineering firm with which he
is associated does the work as a whole.

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a.

Article 2.01(B): Owner shall pay Engineer as set forth in Exhibit C.

b.
Article 3.02(C): If Owner authorizes changes in the scope, extent, or
character of the Project, then the time for completion of Engineers services, and
the rates and amounts of Engineers compensation, shall be adjusted equitably.
c.
Article 6.03(A). All Documents are instruments of service in respect to
this Project, and Engineer shall retain an ownership and property interest therein
(including the copyright and the right of reuse at the discretion of the Engineer)
whether or not the Project is completed
d.
Article 6.03, Use of Documents (D). Engineer grants Owner a license to
use the [construction documents] on the Project.
e.
Article 6.05(D) Payments Upon Termination. In the event of any
termination under paragraph 6.05, Engineer will be entitled to invoice Owner and
to receive full payment for all services performed or furnished and all Reimbursable
Expenses incurred through the effective date of termination. Upon making such
payment, Owner shall have the limited right to the use of Documents, at Owners
sole risk, subject to the provisions of paragraph 6.03.E.
29. Madison County has now terminated and/or breached all of Plaintiffs Project-Specific
contracts by its failure and refusal to pay same.
30. Plaintiffs have not received full payment for all services performed or furnished through
the effective date of termination.
31. Plaintiffs have not received full payment for all Reimbursable Expenses through the
effective date of termination.
32. Nevertheless, despite receiving cease and desist letters, Madison County continues to use
the copyrighted plans and other intellectual property belonging to Plaintiffs.
North Highland Colony Parkway Engineering Work
33. Plaintiffs are the creators of a work of engineering entitled North Highland Colony
Parkway. Plans for North Highland Colony Parkway hereinafter will be referred to as
the North Highland Colony Parkway Engineering Work.

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34. Pursuant to Article 6.03(A) of the North Highland Colony Parkway contract (Exhibit A),
All Documents are instruments of service in respect to this Project, and Engineer shall
retain an ownership and property interest therein (including the copyright and the right of
reuse at the discretion of the Engineer) whether or not the Project is completed
35. The North Highland Colony Parkway Engineering Work is an original work of authorship
of Plaintiffs.
36. The North Highland Colony Parkway Engineering Work is protected by copyright, and
Plaintiffs own copyrights in the North Highland Colony Parkway Engineering Work.
37. Plaintiffs have applied for registration of the North Highland Colony Parkway Engineering
Work with the Register of Copyrights, paid the required fee, deposited the work in
question, and the Copyright Office has received the registration application. Plaintiffs are
awaiting issuance of a certificate of registration which, upon receipt, will be filed with the
Court.
Yandell Road Reconstruction Engineering Work
38. Plaintiffs are the creators of a work of engineering entitled Yandell Road
Reconstruction. Plans for Yandell Road Reconstruction hereinafter will be referred to
as the Yandell Road Reconstruction Engineering Work.
39. Pursuant to Article 6.03(A) of the Yandell Road Reconstruction contract (Exhibit B),
All Documents are instruments of service in respect to this Project, and Engineer shall
retain an ownership and property interest therein (including the copyright and the right of
reuse at the discretion of the Engineer) whether or not the Project is completed
40. The Yandell Road Reconstruction Engineering Work is an original work of authorship of
Plaintiffs.

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41. The Yandell Road Reconstruction Engineering Work is protected by copyright, and
Plaintiffs own copyrights in the Yandell Road Reconstruction Engineering Work.
42. Plaintiffs have applied for registration of the Yandell Road Reconstruction Engineering
Work with the Register of Copyrights, paid the required fee, deposited the work in
question, and the Copyright Office has received the registration application. Plaintiffs are
awaiting issuance of a certificate of registration which, upon receipt, will be filed with the
Court.
Bozeman Road Engineering Work
43. Plaintiffs are the creators of a work of engineering entitled Bozeman Road. Plans for
Bozeman Road hereinafter will be referred to as the Bozeman Road Engineering
Work.
44. Pursuant to Article 6.03(A) of the Bozeman Road Engineering Work contract (Exhibit
C), All Documents are instruments of service in respect to this Project, and Engineer
shall retain an ownership and property interest therein (including the copyright and the
right of reuse at the discretion of the Engineer) whether or not the Project is
completed
45. The Bozeman Road Engineering Work is an original work of authorship of Plaintiffs.
46. The Bozeman Road Engineering Work is protected by copyright, and Plaintiffs own
copyrights in the Bozeman Road Engineering Work.
47. Plaintiffs have applied for registration of the Work with the Register of Copyrights, paid
the required fee, deposited the work in question, and the Copyright Office has received the
registration application. Plaintiffs are awaiting issuance of a certificate of registration
which, upon receipt, will be filed with the Court.

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Reunion Parkway III-A Engineering Work

48. Plaintiffs are the creators of a work of engineering entitled Reunion Parkway III-A.
Plans for Reunion Parkway III-A hereinafter will be referred to as the Reunion
Parkway III-A Engineering Work.
49. Pursuant to Article 6.03(A) of the Reunion Parkway III-A contract (Exhibit D), All
Documents are instruments of service in respect to this Project, and Engineer shall retain
an ownership and property interest therein (including the copyright and the right of reuse
at the discretion of the Engineer) whether or not the Project is completed
50. The Reunion Parkway III-A Engineering Work is an original work of authorship of
Plaintiffs.
51. The Reunion Parkway III-A Engineering Work is protected by copyright, and Plaintiffs
own copyrights in the Reunion Parkway III-A Engineering Work.
52. Plaintiffs plan to apply for registration of the Reunion Parkway III-A Engineering Work
with the Register of Copyrights, pay the required fee, and deposit the Reunion Parkway
III-A Engineering Work. Once the application is completed, Plaintiffs anticipate seeking
leave to amend this lawsuit to include a copyright infringement claim on the Reunion
Parkway III-A Engineering Work.
Calhoun Station Engineering Work
53. Plaintiffs are the creators of a work of engineering entitled Calhoun Station. Plans for
Calhoun Station hereinafter will be referred to as the Calhoun Station Engineering
Work.
54. Pursuant to Article 6.03(A) of the Calhoun Station contract (Exhibit E), All Documents
are instruments of service in respect to this Project, and Engineer shall retain an

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ownership and property interest therein (including the copyright and the right of reuse at
the discretion of the Engineer) whether or not the Project is completed
55. The Calhoun Station Engineering Work is an original work of authorship of Plaintiffs.
56. The Calhoun Station Engineering Work is protected by copyright, and Plaintiffs own
copyrights in the Calhoun Station Engineering Work.
57. Plaintiffs plan to apply for registration of the Calhoun Station Engineering Work with the
Register of Copyrights, pay the required fee, and deposit the Calhoun Station Engineering
Work. Once the application is completed, Plaintiffs anticipate seeking leave to amend this
lawsuit to include a copyright infringement claim on the Calhoun Station Engineering
Work.
Reunion Parkway II Engineering Work
58. Plaintiffs are the creators of a work of engineering entitled Reunion Parkway II. Plans
for Reunion Parkway II hereinafter will be referred to as the Reunion Parkway II
Engineering Work.
59. Pursuant to Article 6.03(A) of the Reunion Parkway II contract (Exhibit F), All
Documents are instruments of service in respect to this Project, and Engineer shall retain
an ownership and property interest therein (including the copyright and the right of reuse
at the discretion of the Engineer) whether or not the Project is completed
60. The Reunion Parkway II Engineering Work is an original work of authorship of Plaintiffs.
61. The Reunion Parkway II Engineering Work is protected by copyright, and Plaintiffs own
copyrights in the Reunion Parkway II Engineering Work.
62. Plaintiffs plan to apply for registration of the Reunion Parkway II Engineering Work with
the Register of Copyrights, pay the required fee, and deposit the Reunion Parkway II

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Engineering Work. Once the application is completed, Plaintiffs anticipate seeking leave
to amend this lawsuit to include a copyright infringement claim on the Reunion Parkway
II Engineering Work.
Gluckstadt Road Engineering Work
63. Plaintiffs are the creators of a work of engineering entitled Gluckstadt Road. Plans for
Gluckstadt Road hereinafter will be referred to as the Gluckstadt Road Engineering
Work.
64. Pursuant to Article 6.03(A) of the Gluckstadt Road contract (Exhibit G), All
Documents are instruments of service in respect to this Project, and Engineer shall retain
an ownership and property interest therein (including the copyright and the right of reuse
at the discretion of the Engineer) whether or not the Project is completed
65. The Gluckstadt Road Engineering Work is an original work of authorship of Plaintiffs.
66. The Gluckstadt Road Engineering Work is protected by copyright, and Plaintiffs own
copyrights in the Gluckstadt Road Engineering Work.
67. Plaintiffs plan to apply for registration of the Gluckstadt Road Engineering Work with the
Register of Copyrights, pay the required fee, and deposit the Gluckstadt Road Engineering
Work. Once the application is completed, Plaintiffs anticipate seeking leave to amend this
lawsuit to include a copyright infringement claim on the Gluckstadt Road Engineering
Work.
Defendants Infringement of the Project-Specific Contract Work
68. W&A and/or Warnock have properly performed all of their work for Madison County
under the seven (7) subject Project-Specific contracts.

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69. As of the filing of the instant Complaint, Madison County has not filed any complaint or
taken any issue with any of W&A and/or Warnocks performance under the subject
Project-Specific contracts.
70. However, despite demands for payment, Madison County has refused to remit full payment
under the Project-Specific contracts. See Exhibit H, a compiled listing of Plaintiffs
outstanding invoices to Madison County; see also Exhibit I, December 7, 2015 Letter to
Madison County; Exhibit J, December 21, 2015 Letter to Madison County; Exhibit K,
January 29, 2016 Letter to Madison County.
71. At all times, including after Madison Countys termination of Plaintiffs from the position
of County Engineer in December 2015, W&A and Warnock own the drawings,
specifications, etc., created by them under the Project-Specific contracts.
72. Also, at termination, W&A became entitled to full payment of all amounts due W&A for
services performed under the Project-Specific contracts, and, until such full payment,
Madison County has no right or license to possess or use the drawings, specifications, etc.,
created by W&A under the Project-Specific contracts.
73. Specifically, unless and until the County mak[es] such [final] payment, the County does
not have the limited right to the use of Documents, at Owners sole risk...
74. Nevertheless, without final payment, the County has used and is currently using some of
these copyrighted works owned by W&A and Warnock.
GENERAL ENGINEERING SERVICES CONTRACT
75. In January 2012, W&A entered into a General Engineering Services contract with Madison
County to cover additional, smaller-value work performed by W&A for Madison County.
See Exhibit L, a true and correct copy of the General Engineering Services contract.

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76. This General Engineering Services contract was a four-year continuation of the prior
general engineering services contract, which was identical in all material aspects.
77. As County Engineer, Plaintiffs billed Madison County under an open account.
78. At least some of the projects governed by the General Engineering Services contract and/or
Project-Specific contracts received federal funding.
79. W&A and/or Warnock have properly performed all of their work under the subject
contracts.
80. As of the filing of the instant Complaint, Madison County has not filed any complaint or
taken any issue with any of W&A and/or Warnocks performance under the General
Engineering Services contracts.
81. However, despite demands for payment, Madison County has failed to remit full payment
under the General Engineering Services contract after terminating same on January 4,
2016, and receiving W&As final invoice. See Ex. H, Ex. I, Ex. J, and Ex. K.
STATE AID CONTRACTS
82. In addition to contracts with Madison County, W&A also contracted with the State of
Mississippi on thirteen (13) projects in Madison County known as State Aid projects.
83. Plaintiffs are currently owed approximately $244,184.00 for work completed on thirteen
(13) State Aid projects.
84. Inasmuch as the amounts owed on these State Aid projects are based on cost of
construction, the exact amounts owed on these projects cannot yet be finally determined.
85. The State Aid Project contract language indicates that, for this work, the County is to pay
the engineers (i.e., Plaintiffs) from its own funds and then receive reimbursement from the
state.

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86. That the County is reimbursed by definition reasonably presupposes that it has already
paid Plaintiffs what is owed for work completed as a prerequisite to ownership or use of
its work product.
87. The County has not fully compensated Plaintiffs for the State Aid work performed by
Plaintiffs at the request of the County.
88. Since the County has not fully compensated Plaintiffs for the work for which their services
were retained (on some of the projects, for instance, Plaintiffs have received partial
compensation for design portions of the projects), the County should not be allowed to reap
the benefit of free use of the work for which it has not paid.
89. In total on these thirty-five (35) construction projects, whether under the Project-Specific
contracts, the General Engineering Services contract, or the State Aid contracts, Madison
County has failed to pay Plaintiffs W&A and Warnock approximately $1,448,481.28 in
earned fees, not including interest and attorneys fees as provided for in the relevant
contracts and/or as provided by Mississippi law, including, without limitation, Mississippi
Code Ann. 11-53-81.
TERMINATION, REVOCATION AND/OR BREACH OF CERTAIN LICENSES
90. The Plaintiffs General Engineering Services contract was terminated on January 4, 2016.
91. Dan Guillet, P.E. has replaced Plaintiffs as County Engineer.
92. By letter dated January 27, 2016, Plaintiffs were advised that their project-specific Yandell
Road contract was terminated.

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93. Although Plaintiffs have not received written termination letters on the other projects,
Madison County has taken the position that Plaintiffs are terminated on all Madison County
work, including project-specific work, general services, and from the State Aid projects. 5
94. At the January 19, 2016, meeting of the Madison County Board of Supervisors, Supervisor
David Bishop made a motion, seconded by Supervisor Paul Griffin, to approve a payment
of some W&A invoices totaling $91,330.00 6. See Excerpt of Minutes of January 19, 2016,
Board of Supervisors meeting attached hereto as Exhibit M.
95. The Madison County Journal, a newspaper of record, reported that following the meeting,
Board President Trey Baxter told its reporter that at least $91,000.00 in invoices was legal
and we have to pay what the law says. See January 20, 2016, article attached hereto as
Exhibit N.
96. Despite that admission that the Board owes Plaintiffs payment and, therefore, has not
fulfilled its obligation of full payment required before it assumes ownership of plans
prepared by W&A and/or Warnock, on information and belief, at the January 19, 2016,
meeting of the Madison County Board of Supervisors, Board President Trey Baxter stated
during public discussion that the Board could and/or would direct the Madison County
Sheriff to enter Plaintiffs offices and take plans for Madison County projects.
97. At the same time it has refused to pay W&A and/or Warnock monies indisputably earned,
Madison County also is attempting to compel Plaintiffs to give Madison County ownership

When a new board of supervisors is elected for a county and they wish to replace the engineers on State
Aid projects, typically the State of Mississippi, the county, and the county engineer will enter into a
transition agreement whereby the engineers complete the phase that they are working onwhether in the
design or contract administration phase. Here, Madison County has refused to enter into any such
standard transition agreement. Therefore, the status of these projects is in limbo.
6

Plaintiffs do not concede, and expressly dispute, that $91,330.00 represents the total amount owed them.

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of their drawings in contravention to the clear language of the contracts. See, e.g., Exhibit
O, January 27, 2016, letter to Rudy Warnock demanding delivery of Yandell Road project
plans.
98. As demonstrated by Ex. O, Madison County seeks to compel Plaintiffs to submit their
outstanding invoices, project plans, and files, in direct defiance of both the express
language of the project-specific contract and the copyright protection afforded Plaintiffs
plans by statute and the General Engineering Services contract. See Ex. B, Section 6.03;
Ex. L, Section 5.1.
99. Furthermore, this demand to submit plans for the Yandell Road project was made with the
intent to use Warnock & Associates project plans, without the permission or authority of
Plaintiffs, and without compensation.
100. On February 1, 2016, Plaintiffs made a formal, written demand for mediation of the dispute
regarding unsettled claims, as provided under Paragraph 6.08 of the Project Specific
Agreements. See Exhibit P, February 1, 2016, Letter of Demand for Mediation.
101. On February 8, 2016, Plaintiffs responded to Madison Countys request for Warnock to
submit outstanding invoices, project plans, and files by a letter in which it made a written
demand for assurances that Madison County and its contractors, subcontractors, suppliers,
and other architecture and engineering design professionals, would immediately cease and
desist use of Plaintiffs plans, drawings, specifications, or any other work product to close
out the Yandell Road or other projects. See Exhibit Q, February 8, 2016 letter re:
Infringement of Copyrights.

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102. The February 8 letter requested such written assurances by return of the letter, with a
signature of a Madison County representative, within five (5) days. To date, the letter has
not been returned.
103. On February 12, 2016, Plaintiffs informed Mr. Guillet that they had submitted a Copyright
Registration Application for the engineering drawings on the North Highland Colony
Parkway Project. See Exhibit R, February 12, 2016 letter Re: Infringement of Copyrights.
104. In that letter, Plaintiffs renewed their prior request that Madison County cease and desist
use of their work product. Id.
105. Despite Plaintiffs multiple demands that Madison County cease and desist unauthorized
and improper use of its protected work product, the Madison County Board of Supervisors
Agenda for February 16, 2016, included the possible closeout of the North Highland Colony
Parkway Project through payment of two claims to Dickerson & Bowen, Inc. (D&B) for
pay applications D&B submitted after Plaintiffs had been terminated by the County. See
Exhibit S, Madison County Claims Docket excerpt.
106. Plaintiffs did not certify the D&B pay applications listed on the February 16, 2016, Board
of Supervisors Agenda, because they were no longer the engineers for the Project.
107. Indeed, Plaintiffs had previously rejected the subject D&B pay applications.
108. However, D&Bs pay applications were certified by Defendant Dan Guillet, using
Plaintiffs copyrighted work. Pay applications can only properly be paid if certified by an
architect or engineer who has the lawful right to use the copyrighted plans.
109. Similarly, on the Yandell Road project, Defendant Dan Guillet signed the general
contractors pay applications although neither he nor any other Defendant had any lawful

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right to use Plaintiffs copyrighted plans. See Exhibit T, Yandell Road Payment
Application.
110. Under both the terms of the Project Specific Contract and federal copyright law, Plaintiffs
are the only engineer with right to use its work product at this time.
111. In addition to Madison Countys breach of its obligations to pay W&A balances due under
the contracts discussed above, Plaintiffs are entitled to relief for past and future copyright
infringement arising from the unauthorized use of Plaintiffs copyrighted work product. The
relief available for such infringements includes:

Injunctive relief. 17 U.S.C 502.

Actual damages and profits, or statutory damages in an amount up to $150,000 per each
infringed work. 17 U.S.C. 504(b) and (c), and

Impounding and destruction of infringing copies of protected work. 17 U.S.C. 503.

CAUSES OF ACTION
I.

COPYRIGHT INFRINGEMENT

112. Plaintiffs incorporate and reallege each of the preceeding paragraphs.

113. Plaintiffs own a valid copyright in the project plans for, among other projects, the Yandell
Road Project, the North Highland Colony Parkway Project, and the Bozeman Road Project
(collectively, the Copyrighted Work).
114. Plaintiffs have applied for registration of the Copyrighted Work, paid the required fee,
deposited the work in question, and the Copyright Office has received the registration
application pursuant to 17 U.S.C. 411(a). See Exhibit U, Applications for the Work.
115. On or about January 27, 2016, 2016, Dan Gaillet, on behalf of the County of Madison,
demanded that Plaintiff Rudy Warnock submit any and allproject plans, and files [for
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the Yandell Road project] in order that we may complete and close out this project. See
Ex. O.
116. This demand was made with the intent to copy and/or use Plaintiffs project plans, without
the permission or authority of Plaintiffs, and without compensating them for the plans and
in violation of Plaintiffs rights under 17 U.S.C. 106.
117. Plaintiffs granted Madison County a non-exclusive license to utilize its copyrights in
connection with past and ongoing projects, but such license was specifically contingent
upon full payment to Plaintiffs.
118. Given that the County has admittedly failed to remit full payment for the use of Plaintiffs
Copyrighted Work, all licenses are accordingly void.
119. Additionally, the Madison County Board of Supervisors Agenda for February 16, 2016,
indicates additional use of Plaintiffs project plans without permission or authority,
inasmuch as it includes the possible closeout of the Highland Colony Parkway Project
through payment of two claims to D&B for pay applications submitted after Plaintiffs had
been terminated by the County.
120. These pay applications can only properly be paid if certified by an architect or engineer
who has the lawful right to use the work product.
121. Yet, under both the terms of the Project Specific Contract and federal copyright law,
Plaintiffs are the only engineer with right to use its work product at this time.
122. Upon information and belief, Madison County continues to utilize Plaintiffs plans on
several ongoing projects without right or permission, including the use and/or dissemination
of Plaintiffs Copyrighted Plans by Dan Gaillet and other contractors, subcontractors, and
engineers, and the creation of unauthorized derivative works.

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123. The infringement committed by Madison County is willful and in disregard of Plaintiffs
rights under the Copyright Act.
124. Plaintiffs have been damaged by Madison County and will continue to be damaged if
Madison Countys infringement continues.
125. The harm caused to Plaintiffs is irreparable.
126. Accordingly, Plaintiffs seek relief under the Copyright Act as follows:
a. Injunctive relief prohibiting current or future use of Plaintiffs Copyrighted Plans
pursuant to 17 U.S.C. 502;
b. Impounding and disposition of all unauthorized copies or derivate works pursuant
to 17 U.S.C. 503;
c. Actual damages or statutory damages up to $30,000, and up to $150,000 for willful
infringement, pursuant to 17 U.S.C. 504; and
d. Costs and attorneys fees pursuant to 17 U.S.C. 505.
II.

CONTRIBUTORY INFRINGEMENT

127. The allegations of the foregoing paragraphs are incorporated as if fully set forth herein.
128. The individual Defendants named herein all had or have knowledge of the infringing
activity of Madison County.
129. The individual Defendants named herein induced, caused or materially contributed to the
infringing conduct of Madison County through their actions as members of the Madison
County Board of Supervisors and County Engineer by causing Madison County to infringe
upon Plaintiffs copyrighted plans and using those plans without Plaintiffs consent after
voluntarily terminating W&As contracts, without payment.

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130. As a result of this contributory infringement, Plaintiffs have been damaged, and face
continued and irreparable harm if the individual Defendants continue to infringe their
copyrights, and continue to induce Madison County to do so as well.
131. Accordingly, Plaintiffs seek relief under the Copyright Act as follows:
e. Injunctive relief prohibiting current or future use of Plaintiffs Copyrighted Plans
pursuant to 17 U.S.C. 502;
f. Impounding and disposition of all unauthorized copies or derivate works pursuant
to 17 U.S.C. 503;
g. Actual damages or statutory damages up to $30,000, and up to $150,000 for willful
infringement, pursuant to 17 U.S.C. 504; and
h. Costs and attorneys fees pursuant to 17 U.S.C. 505.
III.

VICARIOUS INFRINGEMENT

132. The allegations of the foregoing paragraphs are incorporated as if fully set forth herein.
133. Defendant Dan Gaillet currently serves as County Engineer for Madison County.
134. Upon information and belief, Gaillet has and continues to seek to infringe upon Plaintiffs
Copyrighted Plans to Plaintiffs detriment.
135. Furthermore, as County Engineer replacing Plaintiffs with the aid of the individual
members of the Board of Supervisors, he has the right and ability to supervise the infringing
activity, and also has a direct financial interest in the activities.
136. As a result of this vicarious infringement, Plaintiffs have been damaged, and face continued
and irreparable harm if Dan Gaillet continues to infringe their copyrights and oversee
Madison Countys infringement to his own financial benefit.
137. Accordingly, Plaintiffs seek relief under the Copyright Act as follows:

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i. Injunctive relief prohibiting current or future use of Plaintiffs Copyrighted Plans

pursuant to 17 U.S.C. 502;
j. Impounding and disposition of all unauthorized copies or derivate works pursuant
to 17 U.S.C. 503;
k. Actual damages or statutory damages up to $30,000, and up to $150,000 for willful
infringement, pursuant to 17 U.S.C. 504; and
l. Costs and attorneys fees pursuant to 17 U.S.C. 505.

IV.

DECLARATORY JUDGMENT28 U.S.C. 2201

138. The allegations of the foregoing paragraphs are incorporated as if fully set forth herein.
139. Pursuant to United States copyright law, 17 U.S.C. 101 et seq., Plaintiffs engineering
drawings and schematics are entitled to copyright protection in favor of Plaintiffs, including
the right to exclusive use and reproduction, from the moment they are created.
140. Pursuant to their contracts with Madison County, W&A and Warnock granted Madison
County a limited license to use their engineering drawings and other documents in
connection with the relevant contractual projects.
141. However, as the contracts make clear, Engineer shall retain an ownership and property
interest [in the project documents] (including the copyright and the right of reuse at the
discretion of the Engineer) whether or not the Project is completed. See Exs. A-G, Section
6.03; see also Ex. L, Section 5.1 (All Drawings, Specifications and other work product of
the ENGINEER for this Project are instruments of service for this Project only and shall
become the property of the OWNER upon full payment for services as agreed upon.).

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142. After terminating Plaintiffs contracts and refusing to remit full payment for Plaintiffs
performed and accepted work, Madison County threatened legal action against Plaintiffs
and/or otherwise seeking use and ownership of Plaintiffs engineering drawings and
specifications in contravention of the parties contracts.
143. As set forth above, the threats are not only of litigation in the courts, but also wrongful
entry of Plaintiffs offices by Madison County law enforcement to seize the plans in direct
violation of the express contractual terms to which Madison County agreed (namely, that it
owns the plans only upon full payment and that Warnock retains copyright protection in the
documents).
144. By simultaneously admitting it owes Plaintiffs payment for invoices while threatening to
wrongfully and forcibly confiscate Plaintiffs protected plans, Madison County has created
a dispute that is properly decided by this Court.
145. Accordingly, Plaintiffs seek a declaratory judgment that (i) until full and final payment is
made, Plaintiffs are entitled to the full protection and ownership of their engineering
drawings under United States copyright law, 17 U.S.C. 101 et seq., and (ii) to the extent
Plaintiffs have licensed any such drawings to Madison County, such licenses have
terminated and expired because of Madison Countys failure to comply with their payment
terms.
V.

BREACH OF CONTRACT

146. Plaintiffs incorporate and reallege each of the preceding paragraphs.

147. Madison County entered into a contract with Plaintiffs for engineering services related to
planning, zoning, and construction, including, but not limited to, those related to
construction, re-construction, modification and/or improvement of Madison County

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infrastructure systems, streets, roads, facilities, and other matters that are the responsibility
of Madison County. See Ex. L.
148. The terms of this contract are set forth in the General Engineering Services contract signed
by Gerald Steen on behalf of the Madison County Board of Supervisors and Rudy M.
Warnock on behalf of Warnock. Id.
149. In addition to the General Engineering Services contract, Madison County entered at least
seven (7) project-specific agreements. Exs. A-G.
150. Plaintiffs performed all of their obligations under the General Engineering Services
contract and the Project-Specific agreements.
151. Plaintiffs have submitted invoices for services rendered.
152. The General Engineering Services contract requires Madison County to fulfill certain
obligations, including:
Article 2, Owners [Madison Countys] Responsibilities: The OWNER shall: 2.11:
Compensate the ENGINEER [W&A] for services rendered under this Agreement.
Article 4, Payments to the Engineer: 4.1: Progress payments shall be made on an
hourly basis for the services rendered and as indicated within this Agreement and
shall be due and owing within thirty days of the ENGINEERs submittal of his
monthly statement. Past due amounts owed shall include a charge at the maximum
legal rate of interest from the thirtieth day. (Emphasis added.)
Article 5, General Provisions
5.1: Ownership of Documents: All Drawings, Specifications and other work
product of the ENGINEER for this Project are instruments of service for this Project
only and shall become the property of the OWNER upon full payment for services
as agreed upon. (Emphasis added.)
5.6.1: Should litigation or arbitration occur between the two parties relating to the
provisions of this Agreement, all litigation or arbitration expenses, collection
expenses, witness fees, court costs and attorneys fees incurred by the prevailing
party shall be paid by the non-prevailing party to the prevailing party.
153. Additionally, the Project-Specific agreements provide:

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Article 2Owners Responsibilities, 2.01(B): Owner shall pay Engineer as set

forth in Exhibit C.
Article 4Invoices and Payments, 4.01 Invoices.Invoices are due and payable
within thirty (30) days of receipt.
Article 6.03, Use of Documents (A). All Documents are instruments of service in
respect to this Project, and Engineer shall retain an ownership and property interest
therein (including the copyright and the right of reuse at the discretion of the
Engineer) whether or not the Project is completed (Emphasis added.)
6.05(D) Payments Upon Termination. In the event of any termination under
paragraph 6.05, Engineer will be entitled to invoice Owner and to receive full
payment for all services performed or furnished and all Reimbursable Expenses
incurred through the effective date of termination. Upon making such payment,
Owner shall have the limited right to the use of Documents, at Owners sole risk,
subject to the provisions of paragraph 6.03.E. (Emphasis added.)
154. The General Engineering Services contract was terminated by the Madison County Board
of Supervisors on January 4, 2016, as memorialized by a letter from the Madison County
Board Attorney dated January 22, 2016. See Exhibit V, a true and correct copy of the
January 22, 2016 letter from Madison County.
155. The last invoice submitted by Plaintiffs is dated January 6, 2016. 7
156. By and through Madison Countys conduct, as set forth herein, and as will be shown at
trial of this matter, Madison County breached these contracts by failing to provide payment
for services provided.
157. Prior to filing the instant suit, counsel for Plaintiffs sent Madison County correspondences
on December 7, 2015, and December 21, 2015 that relate to some of the past-due invoices.
158. On January 29, 2016, Plaintiffs made a written demand for payment owed for past due
invoices. After receipt of this demand, Madison County still failed and refused to agree that
the invoices were valid.

At least one more invoice will be sent by Plaintiffs covering the increased Engineers Estimate on the
Bozeman Road project.

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159. As a result of these acts and omissions by Madison County, Plaintiffs have suffered
damages as set forth herein.
PRAYER FOR RELIEF
WHEREFORE, PREMISES CONSIDERED, Plaintiffs Warnock & Associates, LLC and
Rudy Warnock, pray for judgment against Defendants Madison County, Mississippi, Dan Guillet,
P.E., and Madison County Supervisors Trey Baxter, Sheila Jones, David Bishop, Gerald Steen,
and Paul Griffin as follows:
a. Injunctive relief pursuant to 17 U.S.C. 502 prohibiting current or future use of
Plaintiffs copyrighted plans;
b. Defendants and their officers, agents, servants, employees, affiliated entities, and
all of those in active concert with them, be preliminarily and permanently enjoined
from committing the acts alleged herein in violation of 17 U.S.C. 501;
c. During the pendency of this lawsuit, Defendants be required to account to the
Plaintiffs for the extent of the infringements;
d. Defendants to deliver to the Plaintiffs all copies of the copyrighted plans;
e. Impounding and disposition of all unauthorized copies or derivate works pursuant
to 17 U.S.C. 503;
f. Defendant Dan Guillet, P.E. be required to pay Plaintiffs all profits earned by him
and his officers, agents, servants, employees, affiliated entities, and all of those in
active concert with him;
g. Each of Defendants Madison County, Mississippi, and Supervisors Trey Baxter,
Sheila Jones, David Bishop, Gerald Steen, and Paul Griffin be required to pay

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Plaintiffs actual damages or statutory damages up to $30,000 per unintentional

infringement, and $150,000 per willful infringement, pursuant to 17 U.S.C. 504;
h. A declaratory judgment that (i) Plaintiffs are entitled to the full protection and
ownership of their engineering drawings under United States copyright law, 17
U.S.C. 101 et seq., on all Project-Specific, General Engineering Services, and
State Aid projects and (ii) to the extent Plaintiffs have licensed any such drawings
to Madison County, such licenses have terminated and expired because of Madison
Countys failure to comply with their payment terms;
i. Actual damages in the principal amount of no less than $1,448,481.28
($1,041,284.08 under project-specific contracts; $163,013.20 under General
Engineering Services contract; and $244,184.00 under State Aid contracts);
j. Pre-judgment interest in the maximum amount allowed by law from the date
services were last provided to the date of entry of the judgment;
k. Post-judgment interest in the maximum amount allowed by law from the date of
entry of the judgment until paid;
l. Costs and reasonable attorneys fees incurred herein pursuant to 17 U.S.C. 505,
and pursuant to the parties contract, the exact amount to be shown at the trial of
this cause; and,
Such other and further relief as this Court may deem just and proper.

Respectfully submitted,

s/Dorsey R. Carson, Jr.___________

Dorsey R. Carson, Jr., MSB #10493
David S. Humphreys, MSB #100085
Julie C. Skipper, MSB #101591
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S. Anna Powers, MSB #103201

Attorneys for Plaintiffs
Rudy Warnock and Warnock & Associates,
LLC

OF COUNSEL:
THE CARSON LAW GROUP
Capital Towers
125 South Congress Street, Suite 1336
Jackson, Mississippi 39201
Telephone: (601) 351-9831
Facsimile: (601) 510-9056
dcarson@thecarsonlawgroup.com
dhumphreys@thecarsonlawgroup.com
jskipper@thecarsonlawgroup.com
apowers@thecarsonlawgroup.com

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