a result of the defendant's misstatements and omissions to the
Copyright Office, the defendant may be granted a registration
of copyright in the photograph entitled "John and Sean at the
Beach." (See Second Amend.Compl. at ¶ 67 (emphasis added).)
Thus, the claim rests, at least in part, on an anticipated and
Although the defendant has not raised the ripeness doctrine,
the Court is entitled to do so sua sponte, regardless of whether
the issue is one drawing from Article III or prudential concerns.
See Reno v. Catholic Soc. Serv., Inc., 509 U.S. 43, 58 n. 18,
113 S.Ct. 2485, 125 L.Ed.2d 38 (1993). The Court requests
briefing from the parties no later than sixty days from the date
of this Opinion as to this issue. The Court is compelled to
specify that such briefing shall be thorough, address the
relevant matters, and be supported by applicable legal research.
D. Claim Relating to Breach of Confidentiality Agreement
Finally, the defendant argues that the plaintiff's breach of
contract claim — which is based on a confidentiality agreement —
is time barred. Specifically, the defendant argues that the claim
began to accrue in 1991, at the time of publication of the
defendant's book, and is therefore untimely.
The applicable statute of limitations is six years. See
N YC.P.L.R. § 213(2). The general rule in New York is that the
statute of limitations begins to run "when a contract is breached
or when one party omits the performance of a contractual
obligation." Airco Alloys Div., Airco Inc. v. Niagara Mohawk
Power Corp., 76 A.D.2d 68, 80, 430 N.Y.S.2d 179, 186 (4th Dep't
1980). Nevertheless, it is also the rule that "where a contract
provides for continuing performance over a period of time, each
breach may begin the running of the statute anew such that
accrual occurs continuously and plaintiffs may assert claims for
damages occurring up to six years prior to the filing of the
suit." See id.; see also Asian Vegetable Research and Dev. Ctr.
v. Inst. of Int'l Educ., 944 F. Supp. 1169, 1177 (S.D.N.Y. 1996);
Donahue v. Pendleton Woolen Mills, Inc., 633 F. Supp. 1423, 1444
("in employment contracts, for statute of limitations purposes, a
new cause of action arises with every violation and the statute
of limitations runs separately as to each."); Shifa Servs., Inc.
v. Port Auth. of New York, No. 96 Civ. 1361(AGS), 1997 WL 16062
*11 (S.D.N.Y. Jan.15, 1997).
We note that the contract in question, if valid, may have
imposed on the defendant a continuing contractual obligation not
to disclose information regarding the Lennons. For this reason,
we find that at this stage of the litigation, the plaintiff's
breach of contract claim is timely as pled, and the defendant's
motion is denied. Similarly, the defendant's motion to dismiss
the thirteenth cause of action, seeking an injunction against any
future attempts to breach the contract, is denied.
VI. Motion to Strike
The defendant moves to strike paragraphs 1-36 of the complaint
stating that these paragraphs are scandalous, defamatory, and
irrelevant. The motion is denied.
Pursuant to Fed.R.Civ.P. 12(f), a Court may order "any
redundant, immaterial, impertinent or scandalous matter" be
stricken from a pleading. Fed.R.Civ.P. 12(f). Motions to strike,
however, "are not favored and will not be granted unless it is
clear that the allegations in question can have no possible
bearing on the subject matter of the litigation." See, e.g.,
Food and Allied Serv. Trades Dep't v. Millfeld Trading Co.,
841 F. Supp. 1386, 1392 (S.D.N.Y. 1994) (quoting Schramm v.
Krischell, 84 F.R.D. 294, 299 (D.Conn. 1979)). The Second
Circuit has instructed that motions made on the basis that the
allegation is impertinent and immaterial shall be denied "unless
it can be shown
that no evidence in support of the allegation would be admissible
. . . Thus the courts should not tamper with the pleadings unless
there is a strong reason for so doing." Lipsky v. Commonwealth
United Corp., 551 F.2d 887, 893 (2d Cir. 1976).
The defendant argues that the sections of the complaint that
discuss an alleged scheme by the defendant to remove articles
from the plaintiff's home and the defendant's subsequent criminal
conviction for larceny relating to such articles are not relevant
to the copyright claims.*fn11 Setting aside the question of
whether these portions of the complaint would be entirely
irrelevant to the copyright claims, the defendant fails to
acknowledge that the plaintiff's complaint is not limited to
allegations of copyright infringement. It also includes claims
such as conversion and return of chattels, to which a scheme to
steal items from the plaintiff's home may be relevant. Further,
the Court notes that the disputed portion of the complaint may be
relevant to the resolution of various issues raised by the
defendant, such as laches and statute of limitations. To name one
example, the reference to the defendant's plea bargain in which
he allegedly agreed to return any property he had wrongfully
taken from the Lennon premises may bear on the question of at
what point the plaintiff should be chargeable with knowledge of
the defendant's possession of certain photographs.
In sum, because the defendant has failed to show that the
allegations in paragraphs 1-36 have no bearing on the subject
matter of the litigation, we deny the motion.
VII. Motion to Dismiss for Failure to Comply with Rule 8(a)
The defendant also moves to dismiss the complaint for failure
to comply with Fed. R.Civ.P. 8(a). Rule 8(a)(2) provides that a
complaint "shall contain . . . a short and plain statement of the
claim showing that the pleader is entitled to relief." Fed.
R.Civ.P. 8(a)(2). See also Fed.R.Civ.P. 8(e)(1) ("Each averment
of a pleading shall be simple, concise, and direct.") When a
complaint does not comply with this rule, the Court may strike
portions of the complaint, or dismiss the complaint. See Simmons
v. Abruzzo, 49 F.3d 83, 86 (2d Cir. 1995). "Dismissal, however,
is usually reserved for those cases in which the complaint is so
confused, ambiguous, vague, or otherwise unintelligible that its
true substance, if any, is well disguised." Id. (quoting
Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988)).
The defendant claims that the complaint is confusing and
verbose, and that it is difficult to decipher what claims the
plaintiff is attempting to make. The Court cannot agree with the
defendant's assertions that the complaint is confusing and
difficult to decipher. The complaint is divided into three
sections: "parties, jurisdiction and venue," "background facts,"
and the plaintiff's thirteen causes of action. The Court in
reviewing the complaint and the defendant's motion to dismiss the
plaintiff's causes of action did not have difficulty in
ascertaining the substance of the plaintiff's allegations, and
finds that the complaint does fairly put the defendant on notice
of the claims asserted against him.
While clear, the background section of the complaint may
contain more detail — and perhaps strikes a more bitter tone —
than necessary to advance the legal claims at issue. Indeed, as
we noted at oral argument, communications by both parties to the
Court reflect the animosity underlying their soured relationship.
it would be more efficient if the parties, when before the Court,
would make greater efforts to concentrate solely on the
adjudication of their legal issues. Nevertheless, dismissal of
the complaint is not appropriate here as the document is neither
confused nor ambiguous. Nor is the complaint easily amenable to a
motion to strike. This is in part due to the manner in which the
complaint is written, and also due to the fact that certain
details may be relevant to resolution of the defendant's
affirmative defenses. For these reasons, and because the Court
does not find that the complaint is so verbose as to require that
any action be taken, the defendant's motion is denied.
VIII. Motion to Dismiss for Lack of Subject Matter Jurisdiction
The defendant argues that because the plaintiff's copyright
claims ought to be dismissed, the Court lacks subject matter
jurisdiction over the action. Because the copyright claims, which
arise under federal law, remain in the suit, the Court has
subject matter jurisdiction pursuant to 28 U.S.C. § 1331, 1338,
and supplemental jurisdiction over the state law claims pursuant
to 28 U.S.C. § 1367. The defendant's motion to dismiss for lack
of subject matter jurisdiction is, therefore, denied.
IX. Defendant's Assertion that Plaintiff Lacks Standing
The defendant's reply brief contains the assertion that the
plaintiff's "claims lack standing." The brief devotes four
sentences to the issue, and provides no supporting case law.
Furthermore, the timing of the defendant's argument did not
afford the plaintiff the opportunity to brief the issue.
The Court does not understand the defendant's argument to
relate to constitutional standing requirements — injury in fact,
a casual connection between the injury and the conduct complained
of, and redressability, see Golden Hill Paugussett Tribe of
Indians v. Weicker, 39 F.3d 51, 58 (2d Cir. 1994) (citing Lujan
v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130,
119 L.Ed.2d 351 (1992)) — but rather to prudential
concerns.*fn12 Due to the untimely nature of the argument, the
Court does not consider the defendant's claims at this time.
Instead, the Court grants the defendant permission to raise the
issue, with full briefing, when the parties submit briefing to
the Court on the ripeness question discussed above.
X. Defendant's Motion for Fees and Costs
The defendant's motion for fees and cost is without merit, and,
indeed, without any supporting argument by the defendant.
Therefore, the motion is denied.
The defendant's motions are denied, except as follows: i) the
plaintiff's claims for tortious interference with contract and
prima facie tort are dismissed; ii) the plaintiff's claims for
recovery of chattels and "conversion," are dismissed to the
extent that these claims relate to the photographs contained in
the 1991 book The Last Days of John Lennon; and iii) the
plaintiff's unjust enrichment cause of action is dismissed
because it is preempted by federal copyright law. Furthermore,
the plaintiff is directed to submit to the Court briefing on the
issue of the Court's jurisdiction over the material other than
the Photographs in the copyright infringement claims, and the
parties are directed to submit to the Court briefing on the issue
of ripeness of the plaintiff's fraud on the Copyright Office
claim. Papers on these issues should be submitted within sixty
days from the date of this Opinion.