United States District Court, E.D. Virginia, Richmond Division
TIMOTHY J. LEVI, Plaintiff,
TWENTIETH CENTURY FOX FILM CORPORATION, et al Defendants.
Hannah Lauck United Stares District Judge
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),  (ECF No. 5); (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),  (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.
and, (4) pro se Plaintiff Timothy J. Levi's
Motion for Discovery, (ECF No. 25).
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.
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. 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.
Procedural and Factual Background
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.
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."
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.
"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.)
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.)
Complaint asserts one count of copyright infringement under
the Copyright Act of 1976, 17 U.S.C. §§ 101 et
seq. ("Count One"). 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.)
has moved to dismiss Levi's Complaint for failure to
state a claim upon which relief can be granted. (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.
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.
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.
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).
Analysis: Motions to Dismiss
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
Court Will Grant the Daniels and Strong Motion to Dismiss for
Lack of Personal Jurisdiction
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.
Levi Bears the Burden of Proving Personal
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.
Personal Jurisdiction Standard
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 ...