United States District Court, S.D. New York
OPINION AND ORDER
VINCENT L. BRICCETTI UNITED STATES DISTRICT JUDGE.
Narrative Ark Entertainment, LLC (“Narrative
Ark”) brings this action against Archie Comic
Publications, Inc. (“Archie”) and Sega of
America, Inc. (“Sega”), alleging claims of
copyright infringement, violations of the Lanham Act, 15
U.S.C. § 1125(a), deceptive business practices under the
New York General Business Law, and common law claims of
unfair competition and unjust enrichment. Narrative Ark also
seeks a declaratory judgment that certain of Archie's
copyright registrations are invalid.
brings a counterclaim against Narrative Ark and a third-party
complaint against third-party defendant Scott D. Fulop,
seeking a declaratory judgment that certain of Narrative
Ark's copyright registrations are invalid. Archie also
brings a third-party claim for slander of title against
the Court are (i) Archie's partial motion to dismiss
Narrative Ark's Lanham Act, unfair competition, and
unjust enrichment claims pursuant to Rule 12(b)(6) (Doc.
#41); (ii) Sega's motion to dismiss the amended complaint
for lack of personal jurisdiction pursuant to Rule 12(b)(2)
or, in the alternative, for a more definitive statement
pursuant to Rule 12(e) (Doc. #47); and (iii) Fulop's
motion to strike or dismiss the amended third-party complaint
pursuant to Rule 12(b)(6) and other grounds (Doc. #78).
reasons set forth below, Archie's motion is GRANTED;
Sega's motion to dismiss is GRANTED and its motion for a
more definitive statement is DENIED as moot; and Fulop's
motion is DENIED.
Court has subject matter jurisdiction under 28 U.S.C.
§§ 1331, 1338, and 1367.
following factual background is drawn from the amended
complaint, amended third-party complaint, and the
parties' submissions in support of and in opposition to
the pending motions. In deciding the pending motions, the
Court accepts as true all well-pleaded factual allegations in
the amended complaint and amended third-party complaint, and
draws all reasonable inferences in plaintiff's and
third-party plaintiff's favor.
is based in New York and is a publisher of comic books. Sega
is located in California and is primarily a video game
publisher. In 1992, Archie entered into a license with Sega
to create and sell comic books based on some of Sega's
characters, including “Sonic the Hedgehog.” In
exchange for the right to develop and market comic books
based on “Sonic the Hedgehog, ” Archie agreed to
pay Sega royalties based on the works Archie developed.
Ark is a New York limited liability company, and Scott D.
Fulop is Narrative Ark's principal.
employed Fulop as a staff editor from around August 1988 to
May 1991, and again from around February 1994 to January
1996. After his employment with Archie ended in 1996, Fulop
claims to have created and developed, either individually or
in collaboration with other freelance writers and artists,
various comic book stories, characters, and artwork,
including new and original characters, for the “Sonic
the Hedgehog” comic book series. Fulop claims he was
paid a fixed sum as a freelancer for first publication rights
in North America for each story or artwork Archie accepted.
Fulop also claims he never entered into a work-for-hire
agreement with Archie.
addition to solo assignments, Fulop collaborated as a
co-author with Kenneth Penders, who also worked as a
freelance writer and artist for Archie, on several projects
for the “Sonic the Hedgehog” comic book series.
Sometime after 1998, Fulop ceased freelance writing for
2009, Penders informed Fulop that Archie was beginning to
reprint certain stories written by Fulop and Penders, as well
as continuing to use some characters created by Fulop and
Penders in other media.
filed and obtained copyright registrations in 2009 and 2010
for a number of stories written or illustrated by Penders,
and in some instances co-written by Fulop or co-written by
Fulop and other writers during their tenures as freelance
writers and artists for Archie. Four of Penders's
copyright registrations list Fulop as one of the copyright
claimants. In addition, Fulop filed and obtained copyright
registrations in 2010 for other works he created for Archie.
organized Narrative Ark in October 2014. On October 5, 2015,
Fulop transferred and assigned all of his copyrighted works
and other intellectual property rights to Narrative Ark.
Ark alleges (i) Archie and Sega have produced and distributed
publications, books, and advertisements in which the stories,
characters, and artwork Narrative Ark claims to own have been
used beyond the scope of the rights Fulop granted to Archie
and without further compensation to Fulop or Narrative Ark;
(ii) Archie and Sega have claimed false authorship and
ownership of these works; and (iii) Archie has asserted false
claims of authorship and ownership of the works in certain
applications for copyright registration filed with the United
States Copyright Office.
on these allegations, Narrative Ark asserts causes of action
against Archie and Sega for direct and contributory copyright
infringement, and seeks a declaratory judgment that
Archie's above-mentioned copyright registrations are
Ark also asserts causes of action against Archie for
violations of the Lanham Act, deceptive practices under New
York General Business Law Section 349, unfair competition,
and unjust enrichment.
moved to dismiss the amended complaint as to Narrative
Ark's claims for violations of the Lanham Act, deceptive
practices under General Business Law Section 349, unfair
competition, and unjust enrichment. Archie answered Narrative
Ark's other claims, and brought an amended counterclaim
against Narrative Ark and an amended third-party complaint
against Fulop seeking a declaratory judgment of invalidity of
Narrative Ark's copyright registrations. Archie also
brings an amended third-party claim for slander of title
against Fulop. Thereafter, Fulop moved to dismiss the amended
third-party complaint arguing, among other things, (i) Archie
failed to timely file its third-party complaint under Rule
14, (ii) Archie is not the owner of the property at issue in
this case, (iii) Archie failed to state a claim upon which
relief can be granted, and (iv) the claims against Fulop do
not arise out of the subject matter of Narrative Ark's
claims against Archie.
also moved to dismiss the amended complaint, arguing
Narrative Ark cannot establish any basis for this Court to
exercise personal jurisdiction over Sega. In the alternative,
if Sega's motion to dismiss is denied, Sega seeks a more
definitive statement from Narrative Ark that clarifies
Narrative Ark's factual and legal claims asserted against
motion to dismiss under Rule 12(b)(2), the “plaintiff
bears the burden of showing that the court has jurisdiction
over the defendant.” In re Magnetic Audiotape
Antitrust Litig., 334 F.3d 204, 206 (2d Cir. 2003).
Prior to discovery, a plaintiff may defeat a motion to
dismiss “by pleading in good faith legally sufficient
allegations of jurisdiction.” Ball v. Metallurgie
Hoboken-Overpelt, S.A., 902 F.2d 194, 197 (2d Cir. 1990)
(internal citation omitted). A plaintiff can make this
showing through “affidavits and supporting materials
containing an averment of facts that, if credited . . . would
suffice to establish jurisdiction over the defendant.”
Whitaker v. Am. Telecasting, Inc., 261 F.3d 196, 208
(2d Cir. 2001). When there has been no hearing on the merits,
“all pleadings and affidavits must be construed in the
light most favorable to [plaintiff] and all doubts must be
resolved in . . . plaintiff's favor.” Landoil
Res. Corp. v. Alexander & Alexander Servs. Inc., 918
F.2d 1039, 1043 (2d Cir. 1990).
deciding a Rule 12(b)(6) motion, the Court evaluates the
sufficiency of the operative complaint under the
“two-pronged approach” articulated by the Supreme
Court in Ashcroft v. Iqbal, 556 U.S. 662, 679
(2009). First, plaintiff's legal conclusions and
“[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, ” are
not entitled to the assumption of truth and are thus not
sufficient to withstand a motion to dismiss. Id. at
678; Hayden v. Paterson, 594 F.3d 150, 161 (2d Cir.
2010). Second, “[w]hen there are well-pleaded factual
allegations, a court should assume their veracity and then
determine whether they plausibly give rise to an entitlement
to relief.” Ashcroft v. Iqbal, 556 U.S. at
survive a Rule 12(b)(6) motion, the allegations in the
complaint must meet a standard of “plausibility.”
Ashcroft v. Iqbal, 556 U.S. at 678; Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 564 (2007). A claim is
facially plausible “when the plaintiff pleads factual
content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. at 678.
“The plausibility standard is not akin to a
‘probability requirement, ' but it asks for more
than a sheer possibility that a defendant has acted
Rule 12(f), “[t]he court may strike from a pleading an
insufficient defense or any redundant, immaterial,
impertinent, or scandalous matter.” Fed.R.Civ.P. 12(f).
“Motions to strike are generally looked upon with
disfavor.” Chenensky v. N.Y. Life Ins. Co.,
2011 WL 1795305, at *1 (S.D.N.Y. Apr. 27, 2011) (internal
quotation marks omitted). A motion to strike “will be
denied, unless it can be shown that no evidence in support of
the allegation would be admissible.” Lipsky v.
Commonwealth United Corp., 551 F.2d 887, 893 (2d Cir.
courts have discretion in resolving Rule 12(f) motions.
See, e.g., In re Platinum &
Palladium Commodities Litig., 828 F.Supp.2d 588, 593
Archie's Partial Motion to Dismiss the Amended