Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Drabek v. Elsevier, Inc.

United States District Court, S.D. New York

February 13, 2017

WARREN DRABEK D/B/A EXPRESSPERMISSIONS, Plaintiff,
v.
ELSEVIER, INC., Defendant.

          For the plaintiff: Laura Scileppi Richard Weiss Dunnegan & Scileppi LLC.

          For the defendants: Kerry M. Mustico Oppenheim Zebrak, LLP.

          OPINION AND ORDER

          DENISE COTE United States District Judge.

         Warren Drabek d/b/a Express Permissions (“Drabek”) brings this breach of contract action against Elsevier, Inc. (“Elsevier”) for an alleged breach of contract. Elsevier moves to dismiss the amended complaint. For the following reasons, the motion is granted pursuant to Rules 12(b)(1) and 12(b)(6), Fed. R. Civ. P.

         Background

         These facts are taken from the amended complaint and documents integral to the complaint. Drabek and Elsevier entered into a seven-month independent contractor's agreement (the “Contract”) commencing on June 1, 2012 and ending on December 31, 2012. The Contract was terminable by Elsevier “without cause at any time upon two weeks prior written notice.” Elsevier did not terminate the Contract prior to its expiration on December 31.

         Elsevier is a publishing company and the Contract provided that Drabek would “investigate and identify potential copyright violations of [Elsevier's] owned content” by “supply[ing] [Elsevier] concrete examples of direct lifts, adaptations, or content where one can clearly identify the material to the original version owned by [Elsevier].” In exchange, Elsevier agreed to pay a “monthly retainer in the amount of $1, 000.00 for the services performed under this agreement.”

The Contract also provided that
[Elsevier] will supply to any company/organization that has been found to be in violation of copyright law a bill for the use of [Elsevier's] content that was used without formal permission. A copy of the letter and bill will be shared with [Drabek]. [Drabek] will receive 15% of the entire amount billed from the breach of copyright law regarding permissions. [Drabek] will be paid 60 days after recovery.

Further, Elsevier agreed to “include in their letter to the violating company/organization that should the company/organization be interested in using [Elsevier's] content in the future, [Elsevier's] preferred vendor for clearing permissions is ExpressPermissions.” Further, the Contract obligated Elsevier to inform Drabek “[s]hould [Elsevier] have any suspicion of companies/organizations that are in violation of copyright law.”

         On July 19, 2012, Drabek notified Elsevier of three entities that had potentially infringed Elsevier's Copyrights --the American Society of Hematology (“ASH”), the American Chemical Society (“ACS”), and the American Association for Cancer Research (“AACR”) -- and provided draft letters and bills for Elsevier to send to the entities. On August 27, Elsevier sent bills totaling $48, 000 to the three entities for unpaid license fees. Elsevier did not ultimately collect any money as a result of the letters sent to ASH, ACS, and AACR. Drabek alleges that “Elsevier prohibited Drabek from approaching ASH, ACS, and AACR to convert them into licensees.”

         Between September 21 and December 28, 2012, Drabek sent Elsevier draft letters and bills for an additional 22 entities with potential infringements amounting to $322, 610 in unpaid fees. Elsevier did not send letters or bills to any of the 22 entities. Drabek alleges that “Elsevier prohibited Drabek from approaching at least some of the other 22 potential infringers in order to convert them into licensees.”

         Elsevier informed Drabek of one suspected infringer during the term of the Contract. The amended complaint alleges that “[u]pon information and belief, Elsevier identified at least dozens, if not hundreds, of suspected infringers of its copyrights during the seven-month duration of the Contract.”

         Drabek alleges the following breaches of contract and corresponding damages: (1) Elsevier failed to “pay Drabek his monthly retainer of $1, 000 for October, November, and December 2012, ” resulting in damages of $3, 000; (2) Elsevier refused to pay Drabek 15% of the amounts billed from ASH, ACS, and AACR, resulting in damages of $7, 320; (3) Elsevier refused to “pay Drabek 15% of the amounts that Elsevier should have billed in unpaid license fees from the 22 potential infringers Drabek identified, ” resulting in damages of $48, 391 -- 15% of the estimated amount that should have been billed -- and a least an additional $20, 000 for Drabek's “lost enhanced opportunity to convert these potential infringers into new licensing clients of Drabek”; (4) Elsevier failed “to notify Drabek of additional suspected infringers of the Copyrights” resulting in damages of at least $20, 000 -- 15% of the estimated amount that should have been billed -- and at least an additional $20, 000 based on his “lost enhanced opportunity to convert suspected infringers into licensing clients.”

         The complaint in this action was originally filed on August 29, 2016, more than three years after the Contract's expiration in 2012. On October 26, Elsevier filed a motion to dismiss. By Order of October 27, Drabek was given an opportunity to file either an opposition to the motion to dismiss or an amended complaint. The Order advised Drabek that it was unlikely that he would have a further opportunity to amend. On November 16, Drabek filed an amended complaint.[1] Drabek filed a renewed motion to ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.