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PATRICK v. FRANCIS

May 16, 1995

DONNA PATRICK, Plaintiff,
v.
JULIE FRANCIS, DR. AMY RUMMEL, DR. FRANK DUSERICK, DR. ERNEST ENKE, and ALFRED UNIVERSITY, Defendants.



The opinion of the court was delivered by: WILLIAM M. SKRETNY

 INTRODUCTION

 Before this Court are (1) defendants' motion filed March 8, 1995, to dismiss plaintiff's complaint pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted, and (2) plaintiff's motion filed March 29, 1995, to remand this action to the Supreme Court of the State of New York. Plaintiff filed her complaint in the Supreme Court of the State of New York, Allegany County, on January 19, 1995, alleging unlawful conversion, unlawful competition, unjust enrichment, copyright violation, and intentional infliction of emotional distress. Plaintiff claims that defendants published a study and research project that plaintiff primarily wrote and that was derived from concepts and ideas plaintiff formulated. Defendants removed the action to this Court on March 1, 1995, on the grounds that plaintiff asserts copyright violations of which this Court has original jurisdiction pursuant to 28 U.S.C. §§ 1331, 1338(a), 1441(b).

 Defendants filed a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) on March 7, 1995, asserting that plaintiff has failed to plead the basic elements of copyright infringement. *fn1" On March 29, 1995, plaintiff filed a motion to remand this action to the Supreme Court of the State of New York. Plaintiff claims that the causes of action she asserts arise under state law and are not removable. *fn2"

 For the reasons set forth below, this Court will deny plaintiff's motion to remand and grant defendants' motion to dismiss.

 FACTS

 Plaintiff alleges the following facts in her complaint. In July 1992 plaintiff was a student at Alfred University. She engaged at that time in an in-depth, extensive, long-term study and research project under the advice and direction of defendant Dr. Amy Rummel. Dr. Rummel directed plaintiff in January 1993 to accept Julie Francis to assist and participate in the project. Ms. Francis was a fellow student at Alfred. Plaintiff and Ms. Francis completed and submitted the project to Dr. Rummel in May 1993. Plaintiff claims that she primarily wrote the project, which was derived from concepts and ideas she formulated.

 On August 31, 1994, plaintiff learned that defendants had published the study and research project in the spring 1994 edition of Hospital Topics. The article named Julie Francis, Dr. Edward G. Coll, Dr. Amy Rummel, Dr. Frank Duserick, and Dr. Ernest Enke as coauthors. The publication did not attribute any authorship or contribution to plaintiff. Plaintiff claims that defendants published the project without her knowledge or permission for their own purposes and to further their own careers. She alleges causes of action for unlawful conversion, unlawful competition, unjust enrichment, copyright violation, and intentional infliction of emotional distress. She seeks $ 500,000 damages as to each cause of action.

 DISCUSSION

 Defendants, having removed this action to federal court, seek to dismiss it pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted. Plaintiff claims that this Court lacks jurisdiction and should remand the action to state court. This Court will first address the jurisdictional issue that plaintiff's motion to remand presents.

 Defendants removed this action to the United States District Court for the Western District of New York on March 1, 1995. They assert that the action constitutes in part a claim by plaintiff to recover damages pursuant to the Copyright Act of 1976 ("Copyright Act"), 17 U.S.C. § 501. This Court, they claim, has original subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331, 1338(a), and 1441(b). Plaintiff disagrees. She argues that her complaint alleges only common law copyright and other state law claims, not violation of the Copyright Act. Federal district court, she contends, does not have original jurisdiction. (Feinman Aff. P 4.) This Court must resolve whether the Copyright Act does in fact preempt plaintiff's claims and, if so, whether removal is proper on that basis.

 A. Preemption

 The first issue is whether the Copyright Act preempts plaintiff's state law claims. Section 301 of the ...


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