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Pfeffer v. Empire Stat

October 31, 2006

SONDRA J. PFEFFER, M.D., PLAINTIFF,
v.
EMPIRE STAT, INC., EMPLRE STAT MED REVIEW, P.C., LOUIS BLOISE, CAROL ANN BLOISE, TOM DOOLEY, AND KELLY BECK, DEFENDANTS.



The opinion of the court was delivered by: Laura Taylor Swain United States District Judge

MEMORANDUM OPINION AND ORDER

Plaintiff Sondra J. Pfeffer, M.D. ("Plaintiff' or "Pfeffer") brings this action against Empire Stat, Inc., Empire Stat Med Review, P.C., Louis Bloise, Carol Ann Bloise, Tom Dooley, and Kelly Block (collectively "Defendants") asserting claims of copyright infringement under the copyright laws of the United States, Title 17 of the United States Code; unfair competition under both Section 43(a) of the Lanham Act, 15 U.S.0 § 1125(a), and New York common law; and fraud and breach of contract under New York common law. This matter comes before the Court on Defendants' motion to dismiss the Amended Complaint*fn1 pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim upon which relief can be granted. The Court has jurisdiction of this case pursuant to 28 U.S.C. §§ 1331, 1338(a) and (b), and 1367.

The Court has thoroughly considered all of the parties' submissions relating to the instant motion. For the following reasons, Defendants' motion to dismiss is denied in part and granted in part.

BACKGROUND

The following relevant facts, which are alleged in the Complaint, are taken as true for purposes of this motion practice. Plaintiff is a licensed physician who is a Board Certified specialist in Radiology. (Compl. 1.) In 1990, Plaintiff began her own consulting business providing second opinion radiological film reviews for attorneys, insurance companies and other parties. (Id. 15.) She developed her own "original text, format, and style of radiological report." (Id.) Plaintiff is the sole author and exclusive user of this unique format. (Id.EL) In May 1995, Defendant Empire Stat, Inc. ("ES") sought the services of the Plaintiff. (Id. ¶ 16.) Pfeffer was hired by ES as an independent contractor to evaluate radiological films and prepare reports summarizing her findings. (Id.)

In September 1995, Defendant Carol Bloise ("Bloise"), co-owner of ES, asked Pfeffer if she would consider increasing her workload and reducing her fee. (Id. 18.) Plaintiff informed Bloise that she would accept the new arrangement subject to the following conditions: (1) no other person would sign reports prepared by Plaintiff; (2) Plaintiff would receive for her files a copy of each report she completed; (3) the volume of work would be consistent; (4) Plaintiff's style of reporting would only be used for reports prepared by her; and (5) ES would not hire any other radiologist while Plaintiff was in their employ. (Id.) Bloise orally accepted these conditions. (Id.) Defendant Louis Bloise is also a co-owner of ES; both Bloises are officers, directors and shareholders of ES. Defendant Empire State Med Review, P.C. is the alter ego and agent of ES. Defendant Dooley is ES' Marketing Director and Defendant Beck is ES' Office Manager. (Id.¶¶ 4-8.)

In or about November 1999, ES cut the volume of Plaintiff's workload in half. (Id. ¶ 23.) Plaintiff later learned that Defendants had hired an additional radiologist, Dr. Stephen Weiser.*fn2 (Id.) Plaintiff confronted Defendant Dooley ("Dooley") about the fact that an additional doctor had been hired in violation of her employment agreement. (Id. ¶24.) Plaintiff notified Dooley that she would leave and consult with her attorney if her contract was not honored. Id.) As a result, Dooley agreed that Plaintiff's workload would be restored to its previous level if she would continue her employment. (Id. ¶ 25.) At that time, Plaintiff reminded Dooley that the other physicians were not to use her style of reporting. (Id.) Despite his assurances that the other physicians were not using her "original report text, style and format," Plaintiff suspected that the Defendants were not being honest. (Id. ¶¶ 26, 28.)

Plaintiff alleges that in January 2000, while in the ES offices, she found a copy of a memorandum in the workspace of Dr. Weiser which was a "copy of the language, style and format of [her] reports." (Id. 26.) Plaintiff once again expressed to Dooley her concerns about the other doctors using her report format. (Id. 27.) Dooley claimed that the other doctors were creating their own reports. (Id.) Upon further investigation, Plaintiff located another memo in March 2000, instructing ES word processing staff to format reports of another radiologist, Dr. Romano, "in essentially the same format as Dr. Pfeffer's reports." (Id. & Ex. C.)

During the first week of March 2000, Dooley asked Pfeffer on two occasions to work from home, and when she refused, Dooley informed Plaintiff that she could no longer work for ES. (Id. ¶¶ 31-32.) During the months of March and April 2000, Plaintiff visited the ES office building numerous times to sign reports and collect paychecks. (Id. ¶ 33.) On one visit to ES in March 2000, Plaintiff was handed a number of reports to approve, among them a report prepared for Dr. Weiser's signature. (ID The report copied Plaintiff's "report text, format and style, but included a signature block for Dr. Weiser." (Id.) Plaintiff has received certificates of registration dated January 2, 2001, for certain of her works from the United States Copyright Office. (Id. ¶ 38 and Exs. F through J.) An ES employee told Plaintiff in March or April 2000 that ES' word processing operators had been instructed to copy sentences and/or paragraphs of Plaintiff's reports into reports for other radiologists. (Id. ¶ 34.)

In her first cause of action, Plaintiff alleges that Defendants have infringed upon her copyrighted works. (Id. ¶ 42.) Plaintiff further claims that Defendants have contributed to the copyright infringement and have induced others to engage in copyright infringement, which allegedly involved the copying of her "original text, content and format, and structure, sequence, and layout." (Id.) In her second cause of action, Plaintiff alleges that "one or more of the defendants have falsely represented and advertised that one or more defendants are the author, originator, or are otherwise authorized to copy plaintiffs copyrighted reports, and have submitted reports prepared for plaintiffs signature, without plaintiffs permission, knowledge or consent, to defendants' insurance company customers." ¶¶ 44-46.) Plaintiffs third cause of action is one for common law fraud, premised on the assertion that the Defendants, by repeatedly reassuring her that they would not hire additional radiologists and that other radiologists were not using her style of reporting, made false representations to her. (Id. ¶ 48.) In her fourth cause of action, Plaintiff asserts that she had an employment agreement with ES and Louis and Carol Bloise. (Id. ¶ 50.) Plaintiff claims that these Defendants breached the employment agreement by violating their obligation of good faith and fair dealing, by hiring additional radiologists, and by copying Plaintiffs style of reporting. (Id.) Plaintiff seeks injunctive relief as well as compensatory and punitive damages.

DISCUSSION

When presented with a motion to dismiss a complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, the Court is required to construe the complaint in the light most favorable to the plaintiff and accept as true all of the material facts alleged in the complaint. Courtenay Communications Corp. v. Hall, 334 F.3d 210, 213 (2d Cir. 2003). Dismissal of the complaint is proper only when "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957).

Copyright Infringement Claim (First Cause of Action)

To prevail on a claim for copyright infringement, plaintiff must prove (1) the ownership of a valid copyright and (2) copying of the constituent elements of the work that are original. Feist Publ'ns ...


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