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Elliott v. Gouverneur Tribune Press, Inc.

United States District Court, Second Circuit

December 3, 2013

AMY ELLIOTT, Plaintiff,

GEORGE R. MCGUIRE, ESQ., BOND, SCHOENECK & KING, Syracuse, New York, Attorneys for Plaintiff.

HENRY J. LEADER, ESQ., ASE, LEADER LAW FIRM, Gouverneur, New York, Attorneys for Defendants.

ROBERT PENCHINA, ESQ., LEVINE, SULLIVAN, KOCH & SCHULZ, New York, New York, Attorneys for Defendants.


MAE A. D'AGOSTINO, District Judge.


On March 6, 2013, Plaintiff filed an amended complaint against Defendants Gouverneur Tribune Press, Inc. and M. Dan McClelland, the Chairman and Chief Executive Officer of Gouverneur Tribune Press, Inc. See Dkt. No. 9. Plaintiff alleges that Defendant Gouverneur Tribune copied and distributed at least thirty-eight photographs taken by Plaintiff between September 2008 and June 2012. See id. at ¶ 8. Plaintiff also alleges that Defendant McClelland made the decision to have these works reproduced, and that both Defendants are liable for copyright infringement under the Copyright Act. See id. at ¶ 11. Defendants move to dismiss and/or strike portions of the amended complaint filed against them pursuant to Rules 12(b)(6), 12(f), and 8(a) of the Federal Rules of Civil Procedure. See Dkt. No. 15.


A. Standard of Review

A motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure tests the legal sufficiency of the party's claim for relief. See Patane v. Clark, 508 F.3d 106, 111-12 (2d Cir. 2007) (citation omitted). In considering the legal sufficiency, a court must accept as true all well-pleaded facts in the pleading and draw all reasonable inferences in the pleader's favor. See ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007) (citation omitted). This presumption of truth, however, does not extend to legal conclusions. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). Although a court's review of a motion to dismiss is generally limited to the facts presented in the pleading, the court may consider documents that are "integral" to that pleading, even if they are neigher physically attached to, nor incorporated by reference into, the pleading. See Mangiafico v. Blumenthal, 471 F.3d 391, 398 (2d Cir. 2006) (quoting Chambers v. Time Warner, Inc., 282 F.3d 147, 152-53 (2d Cir. 2002)).

To survive a motion to dismiss, a party need only plead "a short and plain statement of the claim, " see Fed.R.Civ.P. 8(a)(2), with sufficient factual "heft to sho[w] that the pleader is entitled to relief[, ]'" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007) (quotation omitted). Under this standard, the pleading's "[f]actual allegations must be enough to raise a right of relief above the speculative level, " see id. at 555 (citation omitted), and present claims that are "plausible on [their] face, " id. at 570. "The plausibility standard is not akin to a probability requirement, ' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Iqbal, 556 U.S. at 678 (citation omitted). "Where a complaint pleads facts that are merely consistent with' a defendant's liability, it stops short of the line between possibility and plausibility of "entitlement to relief."'" Id. (quoting [ Twombly, 550 U.S.] at 557, 127 S.Ct. 1955). Ultimately, "when the allegations in a complaint, however true, could not raise a claim of entitlement to relief, " Twombly, 550 U.S. at 558, or where a plaintiff has "not nudged [its] claims across the line from conceivable to plausible, the[] complaint must be dismissed[, ]" id. at 570.

According to Rule 8 of the Federal Rules of Civil Procedure, a claim for relief must contain "a short plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. Proc. 8(a). More specifically, "[a] properly plead copyright infringement claim must allege 1) which specific original works are the subject of the copyright claim, 2) that plaintiff owns the copyrights in those works, 3) that the copyrights have been registered in accordance with the statute, and 4) by what acts during what time the defendant infringed the copyright." Kelly v. L.L. Cool J., 145 F.R.D. 32, 36 (S.D.N.Y. 1992).

B. Application

Defendant contends that the amended complaint failed to adequately identify "which specific original works are the subject of the copyright claim." See Dkt. No. 15-1 at 6-8. In the complaint, Plaintiff alleges that Defendant "copied and distributed at least 38 of Elliott's copyrighted photographic images included amongst the Works without obtaining permission from Elliott." See Dkt. No. 9 at ¶ 8. In order to satisfy the first element of a claim, "the plaintiff is not required to assert exactly which elements of the copyrighted works were infringed." Home & Nature Inc. v. Sherman Specialty Co., 322 F.Supp.2d 260, 266 (E.D.N.Y. 2004) (indicating that listing the copyright registration numbers, annexing copies of the United States Certificates of Copyright Registration, and stating that the defendant had infringed upon one or more of these copyrights was sufficient). Plaintiff produced Certificates of Copyright Registration for the works that she alleges were copyrighted. See Dkt. No. 9 at Ex. A. Additionally, she provided the publication date and subject of the photograph for each of the works. See id. at Ex. B. The fact that Plaintiff lists "individual" for the majority of the works is sufficient to identify the works.

Defendant relies on Plunket v. Doyle, in which the court found that the complaint failed to meet the first Kelly requirement. See Plunket v. Doyle, No. 99 Civ. 11006, 2001 WL 175252, *4 (S.D.N.Y. Feb. 22, 2001). In that case, the list of allegedly copyrighted works was not exhaustive, while here, Plaintiff provided an exhaustive list of the thirty-eight photographic images that Defendant allegedly used without permission. This puts Defendant on fair notice of the claims ...

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