The opinion of the court was delivered by: P. Kevin Castel, District Judge:
Plaintiff Robert Scott, proceeding pro se, brings this action against defendants WorldStarHipHop, Inc., ("WorldStar") and Berkeley College ("Berkeley"). Defendant Berkeley moves to dismiss the claims asserted against it for failure to state a claim upon which relief may be granted. Reading plaintiff's Amended Complaint generously, it asserts the following three federal claims against Berkeley: gender discrimination in an education program, pursuant to 20 U.S.C. § 1681; retaliation for filing a complaint alleging gender discrimination, pursuant to 20 U.S.C. § 1681; and copyright infringement, pursuant to 17 U.S.C. § 501. The Amended Complaint also asserts state law claims against Berkeley for invasion of privacy and negligent infliction of emotional distress. For the reasons set forth below, Berkeley's motion is granted as to the federal claims, and this Court declines to exercise supplemental jurisdiction over the state law claims.
Plaintiff's Amended Complaint arises from a classroom brawl. On November 18, 2010, plaintiff was involved in an "altercation" with his ex-girlfriend, Lakesha Hickmon, and his then-current girlfriend, Danielle Pattillo, during a class at Berkeley. (Am. Compl. ¶ 14.)
The altercation began as an assault by Ms. Hickmon on Ms. Pattillo, in which plaintiff intervened to "break [it] up" in order to "defend and protect" Ms. Pattillo from Ms. Hickmon's attack. (Am. Compl. ¶ 20.) Another student in the class, Mr. Omar Seymour, video-recorded part of the altercation on his mobile phone. (Am. Compl. ¶ 14.) The video, which is annexed to the Amended Complaint and properly considered on this motion, shows plaintiff, Ms. Hickmon and Ms. Pattillo fighting at the back of a classroom. (Am. Compl. Ex. F.) The two females grapple with each other, falling to the ground and then ending up against a wall in what may be described as a fighter's embrace. (Id.) During this, plaintiff punches one of the females about five times. (Id.)
On the day of the fight, Berkeley "expelled pro tempore until further notice" all three participants in the fight. (Am. Compl. ¶ 16.) On the same day, Mr. Seymour posted the video on a platform for distribution to other students known as "Blackboard." (Am. Compl. ¶ 14) In the words of the Amended Complaint, Mr. Seymour "published [the fight video] pursuant to 17 U.S.C. § 101 by distributing copies of the work to a group of the defendant, Berkeley, Jane Doe and John Doe students via Blackboard Services, etc., for further distribution to the Defendant, WorldStar HipHop, Inc." (Id.) The next day, the video appeared on a website owned and operated by defendant WorldStar, "worldstarhiphop.com." (Am. Compl. ¶¶ 3, 14.) That day, plaintiff received a phone call from the Dean of Student Development and Campus Life, Anamaria Cobo De Paci. (Am. Compl. ¶ 17.) Dean Cobo De Paci told plaintiff that "because of the video that has been produced, it doesn't look good on my [sic] part" and that none of the participants would be allowed back into Berkeley until the end of the investigation into the fight. (Id.) Dean Cobo De Paci asked plaintiff to send her a written report about the incident. (Id.) Plaintiff submitted a written report on November 20, explaining that he reasonably believed it was necessary to "protect [his] girlfriend Ms. Pattillo from the physical assault by Ms. Hickmon as the crowd jeered and encouraged such violence." (Am. Compl. Ex. G.)
Around the same time, Dean Cobo De Paci met in person with Ms. Hickmon and Ms. Pattillo and interviewed four witnesses to the altercation. (Am. Compl. Ex. H.) Based on these conversations, Dean Cobo De Paci concluded that Ms. Pattillo was "a victim of self defense after Ms. Hickmon hit her first;" that Ms. Hickmon hit Ms. Pattillo because "Mr. Scott included Ms. Patillo [sic] comments into the conversation and the verbage [sic] was offensive;" and that "the situation was elevated by Mr. Scott," who could have prevented it from moving forward, but who instead "began beating up Ms. Hickmon and throwing her on the floor." (Id.) Therefore, she "[did] not recommend that Mr. Scott return to Berkeley due to his public disorderly conduct and harassment against Ms. Hickmon." (Id.) However, she "strongly recommend[ed] that both women return to campus on Monday 11/29" and that they be provided with a counselor and a mediator. (Id.)
At this point, plaintiff began to complain that he was being treated differently from the women involved in the altercation based on his gender. In a series of emails to Dean Cobo De Paci beginning on November 28, he complained that Ms. Hickmon and Ms. Pattillo were allowed to return to school while he was not; he requested an explanation and made attempts to set a meeting time with the Dean. (Am. Compl. ¶¶ 23-29 and Ex. I.) Dean Cobo De Paci offered as explanation that "each individual involved in the incident is treated as a separate case," and suggested a meeting time on November 30. (Id.) Apparently no meeting took place on November 30; instead, on that day, plaintiff filed an "affirmative action complaint" with Berkeley against Dean Cobo De Paci. (Am. Compl. ¶ 30 and Ex. J.) That afternoon, Dean Cobo De Paci telephoned plaintiff and told him that he was expelled. (Am. Compl. ¶ 32.)
Later the same day, plaintiff filed a verified complaint with New York State Division of Human Rights ("NYSDHR") alleging sex discrimination by Berkeley. (Am. Compl. Ex. P.) On January 19, 2011, the NYSDHR dismissed the complaint, concluding: "[a]fter gathering all the evidence, [Berkeley] exercised its discretion and expelled the complainant for his egregious behavior, which he acknowledged." (Id.)
Separately, plaintiff purchased all rights in the fight video from Mr. Seymour and registered his copyright with the United States Copyright Office. (Am. Compl. ¶ 35 and Exs. A, L.) Thereafter, plaintiff sent letters to both Berkeley and WorldStar demanding, among other things, that they cease and desist from any infringing uses of the fight video. (Am. Compl. Exs. M, O.) However, WorldStar continued to make the video available on its website. (Am. Compl. ¶ 38). The Amended Complaint also alleges that Berkeley, "acting through its counsel Mr. David. F. Bayne . . . . downloaded a copy [from the WorldStar website] . . . and distributed the work through its blackboard network and the law offices of Kavanah Maloney & Osnato LLP." (Am. Compl. ¶ 39.) Similarly, on December 14, Berkeley downloaded a copy of the fight video and attached it to Berkeley's verified answer to plaintiff's NYSDHR complaint. (Am. Compl. ¶ 41.)
Subsequently, plaintiff commenced this action, and thereafter Berkeley moved to dismiss the original complaint on April 18, 2011 (Docket # 15), after first providing the plaintiff and the Court with a pre-motion letter outlining the basis of the motion (Docket # 14). In apparent reliance on Fed. R. Civ. P. 15(a)(1)(B), plaintiff filed an Amended Complaint on May 24, 2011. (Docket # 26.)*fn1 Berkeley outlined the proposed basis for the motion addressed to the Amended Complaint in a letter to the Court, and the Court set a schedule on the motion. (Docket # 28.) Berkeley has served plaintiff with the notice required by Rule 12.1 of the Local Civil Rules. (Docket # 33).
I. Motion to Dismiss Pursuant to Rule 12(b)(6)
To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Aschcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). In assessing a compliant, courts draws all reasonable inferences in favor of the plaintiffs. See In re Elevator Antitrust Litig., 502 F.3d 47, 50 (2d Cir. 2007). And, in the case of pro se plaintiffs, courts give a liberal and generous construction to the ...