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Bitetto v. Romitty

United States District Court, N.D. New York

February 16, 2018

MARCO A. BITETTO, Plaintiff,
v.
VIRGINIA ROMETTY, Defendant.

          DECISION AND ORDER

          Lawrence E. Kahn U.S. District Judge

         I. INTRODUCTION

         Plaintiff Marco Bitetto, proceeding pro se, brings this action against defendant Virginia Rometty, the chief executive officer of IBM Corp., alleging that Defendant committed copyright infringement and unfair competition by publishing and selling a book that used material from a work that Plaintiff authored. Dkt. No. 1 (“Complaint”) ¶¶ 1-8. Before the Court is Defendant's motion to dismiss. Dkt. Nos. 17 (“Motion”); 17-1 (“Memorandum”). For the reasons that follow, the Motion is granted.

         II. BACKGROUND

         A. Factual History

         The facts stated in this section are set forth as alleged in the Complaint, although many of the facts that form the basis of this action are not entirely clear.[1] Plaintiff authored a book entitled “NERVOTRON: A Functional Silicon Analog to the Neuron.” Compl. ¶ 1. He authored the book “[b]efore 16 June 2017.” Id. He applied for a copyright for Nervotron and “received a certificate of registration dated 15 September 2017.” Id. ¶ 5. “After the copyright was issued, ” Plaintiff alleges that Defendant “infringed the copyright by using, publishing and selling rights to use material from” his book, and that she “continues to infringe the copyright by continuing to publish and sell the book in violation of the copyright, and further has engaged in unfair trade practices and unfair competition in connection with its publication.” Id. ¶¶ 6, 8.

         B. Procedural History

         Plaintiff commenced this action on June 19, 2017. Compl. His Complaint alleges that Defendant committed copyright infringement and unfair competition by publishing a book that contained material from Nervotron. Compl. ¶¶ 1-8. Defendant moved to dismiss the Complaint on November 14, 2017. Mot; Mem. Plaintiff filed a response, Dkt. Nos. 21 (“Response”); 22 (“Plaintiff's Exhibits”), and Defendant replied, Dkt. No. 23 (“Reply”). On December 14 and 15, 2017, Plaintiff submitted two surreplies pursuant to Local Rule 7.1(b)(1). Dkt. Nos. 24, 26 (“Stricken Surreplies”). The Court struck both surreplies. Dkt. Nos. 25, 27. Between December 18, 2017, and January 16, 2018, Plaintiff submitted five more surreplies. Dkt. Nos. 28-30, 32-33 (“Surreplies”).

         III. LEGAL STANDARD

         To survive a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, a “complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A court must accept as true the factual allegations contained in a complaint and draw all inferences in favor of the nonmoving party. Allaire Corp. v. Okumus, 433 F.3d 248, 249-50 (2d Cir. 2006). Plausibility, however, requires “enough fact[s] to raise a reasonable expectation that discovery will reveal evidence of [the alleged misconduct].” Twombly, 550 U.S. at 556.

         The plausibility standard “asks for more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). “[T]he pleading standard Rule 8 announces does not require ‘detailed factual allegations, ' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. (quoting Twombly, 550 U.S. at 555). Where a court is unable to infer more than the mere possibility of the alleged misconduct based on the pleaded facts, the pleader has not demonstrated that she is entitled to relief and the action is subject to dismissal. Id. at 678-79.

         Finally, given Plaintiff's pro se status, the Court is obligated to construe the allegations in the Complaint with the utmost leniency. See Haines v. Kerner, 404 U.S. 519, 520 (1972) (holding that a pro se litigant's complaint is to be held “to less stringent standards than formal pleadings drafted by lawyers”).

         IV. DISCUSSION

         Defendant argues that Plaintiff fails to plead his copyright infringement and unfair competition claims with sufficient detail, and that his unfair competition claim is preempted by the Copyright ...


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