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Levi v. Twentieth Century Fox Film Corp.

United States District Court, E.D. Virginia, Richmond Division

March 30, 2017

TIMOTHY J. LEVI, Plaintiff,
v.
TWENTIETH CENTURY FOX FILM CORPORATION, et al Defendants.

          MEMORANDUM OPINION

          M. Hannah Lauck United Stares District Judge

         This matter comes before the Court on four motions: (1) Defendant Robert Walker, Jr.'s Motion to Dismiss for Failure to State a Claim (the "Walker Motion to Dismiss for Failure to State a Claim"), filed pursuant to Federal Rule of Civil Procedure 12(b)(6), [1] (ECF No. 5);[2] (2) Defendants Lee Daniels and Danny Strong's Motion to Dismiss the Complaint Based on a Lack of Personal Jurisdiction (the "Daniels and Strong Motion to Dismiss for Lack of Personal Jurisdiction"), filed pursuant to Federal Rule of Civil Procedure 12(b)(2), [3] (ECF No. 16); (3) Daniels and Strong's Motion to Dismiss the Complaint with Prejudice Pursuant to Rule 12(b)(6) (the "Daniels and Strong Motion to Dismiss for Failure to State a Claim"), (ECF No. 18);[4] and, (4) pro se Plaintiff Timothy J. Levi's Motion for Discovery, (ECF No. 25).

         Levi has responded to the Daniels and Strong Motion to Dismiss for Failure to State a Claim, (ECF No. 22), and Daniels and Strong have replied, (ECF No. 24). Levi has not responded to the Walker Motion to Dismiss for Failure to State a Claim or to the Daniels and Strong Motion to Dismiss for Lack of Personal Jurisdiction, and the time to do so has expired. Defendants Daniels, Strong, and Twentieth Century Fox Film Corporation ("Twentieth Century Fox") have jointly responded to the Motion for Discovery. (ECF No. 26.) Levi has not replied, and the time to do so has expired.

         The Court dispenses with oral argument because the materials before it adequately present the facts and legal contentions, and argument would not aid the decisional process. Accordingly, the matters are ripe for disposition. The Court exercises jurisdiction pursuant to 28 U.S.C. § 1331.[5] For the reasons that follow, the Court will: (1) grant the Daniels and Strong Motion to Dismiss for Lack of Personal Jurisdiction; (2) deny as moot the Daniels and Strong Motion to Dismiss for Failure to State a Claim; (3) grant the Walker Motion to Dismiss; and, (4) deny as moot the Motion for Discovery. The Court will grant Levi leave to file an amended complaint against Walker.

         I. Procedural and Factual Background

         A. Factual Background[6]

         Levi's Complaint arises out of the alleged copyright infringement by the Twentieth Century Fox television series Empire of a book, Unity Incorporated: The Mastermind (the "Book"). Levi alleges that Empire's Season One "borrows heavily" from the Book. (Compl. ¶ 15.) Levi authored the Book in 2007 and registered it with the United States Copyright Office on May 21, 2008. (Cert. Reg., ECF No. 1-1.) Empire debuted in 2015.

         In or about 2007, Levi, a resident of the Commonwealth of Virginia, telephoned Walker from the Baskerville Correctional Center in Baskerville, Virginia, and asked if Walker would assist him with publishing the Book. Walker informed Levi that he had "entertainment connections" and could help. (Compl. ¶ 12.) Levi then instructed his mother, Mary Wilson, to deliver the Book's manuscript to Walker's office. On November 27, 2007, Wilson telephoned Walker, who told her to mail the Book's manuscript to his office, "in care of Shantel Morris." (Compl. ¶ 12; Wilson Decl. ¶ 2, ECF No. 1-2.) Instead of mailing the Book's manuscript, Wilson delivered it to Walker's office by hand. Four months after Walker received the manuscript, Levi unsuccessfully attempted to contact Walker to determine the progress of the Book's publication. Levi then asked Wilson to visit Walker's office "unannounced." (Compl. ¶12.)

         On March 17, 2008, Wilson and her daughter, Cassandra Perm, visited Walker. Walker stated that the manuscript "was in another location" and that he would mail the manuscript to Wilson. (Wilson Decl. ¶ 4.) Walker did not call Wilson or mail the Book's manuscript to her. Levi filed a bar complaint against Walker for failing to return his property to him. After the Virginia State Bar did not take immediate action, Levi instructed his mother to appear again, in person, at Walker's office. On or about March 30, 2008, Wilson and Penn returned to Walker's office. Walker made a copy of the Book's manuscript and returned it to Wilson.

         Levi "is informed and believes on that basis" that Walker transferred the Book to Daniels and Strong "between 2007 and 2013." (Compl. ¶ 13.) Levi alleges that "Daniels and Strong were accorded credit as creator and producers of the first episode" of Empire and that "Fox was accorded company credit on all episodes of the series which [are] currently on the air." (Id. ¶14.)

         Levi presents his copyright claim under various theories of liability. First, he asserts that "each [d]efendant was the agent, servant, employee, partner, successor, assignee, joint venture and/or franchisee of each of the remaining defendants herein, and was at all times acting within the course and scope of said agency, service, employment, partnership, joint venture and/or franchise." (Compl. ¶ 9.) Second, Levi contends that all acts and omissions alleged were "done with the approval and consent" of each defendant and were ratified. (Id.) Third, Levi posits that "each defendant may be held liable for the infringing acts committed by another to the extent that each [d]efendant had the right and ability to control the infringing activities alleged herein and had a direct financial interest in such activities, regardless of whether each said defendant had intent or knowledge of the infringement alleged herein." (Id. ¶ 10.) And fourth, Levi submits that "each [d]efendant who knowingly induced, caused or materially contributed to the infringement alleged herein, by another [d]efendant herein but who may not have committed or participated in the infringing acts him or herself, may be held liable as a contributory infringer." (Id.)

         B. Procedural Background

         Levi's Complaint asserts one count of copyright infringement under the Copyright Act of 1976, 17 U.S.C. §§ 101 et seq. ("Count One").[7] Levi brings Count One against Twentieth Century Fox, Daniels, Strong, and Walker. Of those four defendants, three-Daniels, Strong, and Walker-have moved to dismiss Levi's claim. Twentieth Century Fox has filed an answer. (ECF No. 20.)

         Walker has moved to dismiss Levi's Complaint for failure to state a claim upon which relief can be granted.[8] (ECF No. 5.) Walker requests dismissal on two grounds. First, he contends that Levi has not plausibly alleged an agency relationship between Walker and the parties that Levi asserts actually infringed on the Book's copyright. Second, Walker argues that Levi did not have copyright protection in the Book when Walker supposedly infringed on it. Levi did not file a response to the Walker Motion to Dismiss for Failure to State a Claim, and the time to do so has expired.

         Daniels and Strong move to dismiss Levi's Complaint for two reasons set forth in separate motions. (ECF Nos. 16, 18.) First, Daniels and Strong contend that the Court lacks personal jurisdiction over them because they have no contacts with Virginia, the forum state. Levi did not file a response to the Daniels and Strong Motion to Dismiss for Lack of Personal Jurisdiction, and the time to do so has expired. Second, Daniels and Strong argue that Levi fails to state a claim upon which relief can be granted because: (1) Empire does not share substantial similarities with the Book; and, (2) Levi does not allege access. Levi responded to the Daniels and Strong Motion to Dismiss for Failure to State a Claim, and Daniels and Strong replied.

         Before the Court resolved the motions to dismiss, Levi filed the Motion for Discovery. (ECF No. 25.) Levi seeks the discovery of eighteen episodes of Empire, as well as "any and all evidence written, recorded, photographic, tangible intangible which pertains to the Empire television series." (Mot. Discovery 1.) Twentieth Century Fox, Daniels, and Strong responded, agreeing to comply with Levi's request without conceding its appropriateness.

         Federal district courts have a duty to construe pro se pleadings liberally. Bracey v. Buchanan, 55 F.Supp.2d 416, 421 (E.D. Va. 1999). That said, apro se plaintiff must nevertheless allege sufficient facts to state a cause of action. Id. (citing Sado v. Leland Mem'l Hosp., 933 F.Supp. 490, 493 (D. Md. 1996)). The Court cannot act as a pro se litigant's "advocate and develop, sua sponte, statutory and constitutional claims" that the litigant failed to raise on the face of the complaint. Newkirk v. Circuit Court of Hampton, No. 3:14cv372, 2014 WL 4072212, at *1 (E.D. Va. Aug. 14, 2014).

         II. Analysis: Motions to Dismiss

         Collectively, the defendants have filed three motions to dismiss. Two of the motions to dismiss, one filed by Walker and one filed by Daniels and Strong together, assert that Levi has failed to state a claim upon which relief can be granted. The other motion to dismiss contends that this Court does not have personal jurisdiction over Daniels and Strong. Because the Court need not reach the merits of Levi's case against Daniels and Strong if the Court lacks personal jurisdiction over them, the Court will address the jurisdictional challenge first.[9]

         A. The Court Will Grant the Daniels and Strong Motion to Dismiss for Lack of Personal Jurisdiction

         The Court will grant the Daniels and Strong Motion to Dismiss for Lack of Personal Jurisdiction. Levi's Complaint alleges no contacts between Daniels and Strong and Virginia. The only allegations in the Complaint pertaining to Daniels and Strong at all are as follows: (1) Daniels resides in California and "is a director, writer, and producer with numerous film and television credits, and according to IMDB is the creator and Executive Producer of [Empire]"; (2) Strong "is a director, writer, producer and actor with numerous film and television credits, and according to IMDN is the Creator, Executive producer and a director of [Empire]; (3) Walker transferred the manuscript of the Book to Daniels and Strong without Levi's permission; and, (4) Daniels and Strong "were accorded credit as creator and producers of the first episode." (Compl. ¶¶ 6, 7, 13, 14.) These allegations cannot suffice to establish a prima facie case of personal jurisdiction.

         1. Levi Bears the Burden of Proving Personal Jurisdiction

         "When personal jurisdiction is properly challenged under Rule 12(b)(2), the jurisdictional question is to be resolved by the judge, with the burden on the plaintiff ultimately to prove grounds for jurisdiction by a preponderance of the evidence." Careflrst of Md., Inc. v. Carefirst Pregnancy Ctrs., Inc., 334 F.3d 390, 396 (4th Cir. 2003). When a district court considers a challenge to personal jurisdiction without conducting an evidentiary hearing, the plaintiff need only make a prima facie showing of personal jurisdiction, rather than show jurisdiction by a preponderance of the evidence. Id; Combs v. Bakker, 886 F.2d 673, 676 (4th Cir. 1989). "The [C]ourt, in deciding whether a plaintiff has met this burden, must construe all relevant pleading allegations in the light most favorable to the plaintiff, assume credibility, and draw the most favorable inferences for the existence of jurisdiction." Brooks v. Motsenbocker Advanced Devs., Inc., 242 F.App'x 889, 890 (4th Cir. 2007) (citing Combs, 886 F.2d at 676). "If a plaintiff makes the requisite showing, the defendant then bears the burden of presenting a 'compelling case, ' that, for other reasons, the exercise of jurisdiction would be so unfair as to violate due process." Reynolds Foil, Inc. v. Pai, No. 3:09cv657, 2010 WL 1225620, at *1 (E.D. Va. Mar. 25, 2010) (quoting Burger King v. Rudzewicz, 471 U.S. 462, 477-78 (1985)). "For purposes of the motion to dismiss, the reviewing court may presume that any uncontradicted evidence submitted by either party is true." Id.

         2. Personal Jurisdiction Standard

         Federal courts exercise personal jurisdiction in the manner provided by state law. NewWellington Fin. Corp. v. Flagship Resort Dev. Corp.,416 F.3d 290, 294 (4th Cir. 2005). Therefore, a district court must first decide whether Virginia state law permits the court to exercise personal jurisdiction over the defendant, and second, whether the exercise of such jurisdiction comports with the due process requirements of the Fourteenth Amendment. Id;Christian Sci. Bd. of Dirs. of the First Church of Christ, Scientist v. Nolan,259 F.3d 209, 215 (4th Cir. 2001); ESAB Group, Inc. v. Centricut, Inc., 126 F.3d 617, 622 (4th Cir. 1997). "Because Virginia's long-arm statute extends personal jurisdiction to the extent permitted by the Due Process Clause, 'the statutory inquiry necessarily merges with the constitutional inquiry, and the two inquiries essentially become one.'" Young v. New Haven Advocate,315 F.3d 256, 261 (4th Cir. 2002) (quoting Stover v. O'Connell Assocs., Inc.,84 F.3d 132, 135-36 (4th Cir. 1996)) (internal citation omitted). Accordingly, the inquiry becomes whether the defendant ...


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