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HOGAN v. DC COMICS

August 31, 1997

FRANCIS HOGAN and DANIEL MASUCCI, Plaintiffs,
v.
DC COMICS; WARNER COMMUNICATIONS, INC.; TIME WARNER ENTERTAINMENT CO., L.P.; NANCY COLLINS; and PAUL LEE, Defendants.



The opinion of the court was delivered by: MCAVOY

 I. BACKGROUND

 This case is essentially an action for copyright infringement. Plaintiffs Hogan and Masucci are the authors of a comic entitled "Matchsticks." The defendants are DC Comics, its corporate owners/joint venturers, and the two authors of an allegedly infringing comic. The two-count Complaint seeks to hold Defendants liable for copyright infringement and for common law misappropriation.

 Hogan and Masucci began writing Matchsticks in 1993. In August 1994, Hogan submitted a draft of three issues of Matchsticks (Plaintiffs hoped to create a total of nine issues in the Matchsticks series) and promotional materials to DC Comics ("DC"). DC notified Plaintiffs that they were not interested in publishing Matchsticks, although they would keep the manuscript on file. In September 1996, Masucci and Hogan discovered that DC was advertising a forthcoming comic book entitled "Dhampire: Stillborn" ("Dhampire") about a half-human, half-vampire protagonist named Nicholas Gaunt. In October, 1996, Plaintiffs registered Matchsticks with the Copyright Office and in November, 1996, filed the instant Complaint.

 On February 28, 1997, in a decision read from the bench, this Court granted in part Defendants' motion to dismiss, dismissing Plaintiffs' state law cause of action only. Presently before the Court is Defendants' Motion for Reconsideration of this Court's decision not to dismiss Plaintiffs' copyright infringement claim.

 II. DISCUSSION

 Reconsideration of a prior decision is discretionary, and the factors that generally compel reconsideration are "an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice." Virgin Atlantic Airways Ltd. v. National Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992). Naturally, a Court is disinclined to reconsider a prior decision unless a party has satisfied one of these three factors.

 Here, Defendants argue that reconsideration is necessary to correct a clear error of law. Specifically, Defendants argue that it was incorrect for the Court to limit its consideration to the facts asserted on the face of the Complaint rather than examining the copies of Matchsticks and Dhampire attached to Defendants' motion, which was referred to in Plaintiffs' Complaint.

 After considering Defendants' arguments, the Court concludes that it was incorrect for the Court to refuse to evaluate the underlying works referenced in Plaintiffs' Complaint. As the Second Circuit has stated in an analogous context:

 
We . . . decline to close our eyes to the contents of the prospectus and to create a rule permitting a plaintiff to evade a properly argued motion to dismiss simply because plaintiff has chosen not to attach the prospectus to the complaint or to incorporate it by reference.

 I. Meyer Pincus & Associates, P.C. v. Oppenheimer & Co., Inc., 936 F.2d 759, 762 (2d Cir. 1991) (citing Field v. Trump, 850 F.2d 938, 949 (2d Cir. 1988), Furman v. Cirrito, 828 F.2d 898, 900 (2d Cir. 1987), and 5 C. Wright & A. Miller, Federal Practice & Procedure ยง 1327, at 489 & n.15 (when "plaintiff fails to introduce a pertinent document as part of his pleading, defendant may introduce the exhibit as part of his motion attacking the pleading")).

 Accordingly, the Court grants Defendants' request for reconsideration and will examine Matchsticks and Dhampire to determine if Plaintiffs have sufficiently stated a claim for copyright infringement.

 A. Motion To Dismiss

 Federal Rule of Civil Procedure 12(b)(6) provides that a cause of action shall be dismissed if the complaint fails "to state a claim upon which relief can be granted." In analyzing a motion to dismiss, the facts alleged by the plaintiff are assumed to be true and must be liberally construed in the light most favorable to the plaintiff. See, e.g., Easton v. Sundram, 947 F.2d 1011, 1014-15 (2d Cir. 1991). While a court need not accept mere conclusions of law, a court should accept the pleader's description of what ...


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