United States District Court, N.D. New York
MARCO A. BITETTO, Plaintiff,
VIRGINIA ROMETTY, Defendant.
DECISION AND ORDER
Lawrence E. Kahn U.S. District Judge
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.
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. 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.
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
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.
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,
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.
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”).
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 ...