United States District Court, E.D. Virginia, Richmond Division
TIMOTHY J. LEVI, Plaintiff,
TWENTIETH CENTURY FOX FILM CORPORATION, et at., Defendants.
Harunah Lauck United States District Judge
matter comes before the Court on two Motions to Dismiss: (1)
Defendant Twentieth Century Fox Film Corporation's
("Twentieth Century Fox") Motion to Dismiss the
Amended Complaint with Prejudice, filed pursuant to Federal
Rule of Civil Procedure 12(b)(6) (the "Twentieth Century
Fox Motion to Dismiss"), (ECF No. 32); and, (2)
Defendant Robert Walker, Jr.'s Motion to Dismiss the
Amended Complaint with Prejudice (the "Walker Motion to
Dismiss"), also filed pursuant to Rule 12(b)(6), (ECF
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 28U.S.C. §
1331. For the reasons that follow, the Court
will grant the Twentieth Century Fox Motion to Dismiss and
deny the Walker Motion to Dismiss.
Procedural and Factual Background A. Factual
Amended Complaint arises out of the alleged copyright
infringement by the Twentieth Century Fox television series
Empire of his unpublished book, Unity
Incorporated: The Mastermind ("Unity
Incorporated") and Walker's alleged copying of
Unity Incorporated. Levi alleges that
Empire and Unity Incorporated share
''striking similarities" and that the show
"borrows heavily'"' from Unity
Incorporated. (Am. Compl. ¶¶ 1, 10, ECF No.
29.) Levi registered Unity Incorporated with the
United States Copyright Office in 2008. 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 help him
publish Unity Incorporated. Walker agreed. Levi then
instructed his mother, Mary Wilson, to deliver the Unity
Incorporated manuscript to Walker's office. Four
months after Walker received the manuscript, Levi asked his
mother to go back to Walker's office and demand that
Walker return the manuscript to her. Following her son's
instructions, Wilson and her daughter, Cassandra Penn,
visited Walker. Walker returned the Unity
Incorporated manuscript to Wilson, but before doing so,
he made a copy of Unity Incorporated and kept the
copy in his possession.
asserts that he has lost and will continue to lose
substantial revenues and "has sustained damages'* as
a result of Twentieth Century Fox and Walker's alleged
infringement of his copyright. (Id. ¶ 17.) Levi
seeks an injunction enjoining further violations of his
copyrights and $1, 500, 000 in damages resulting from the
"gain, profits, and advantages obtained by
[defendants'] acts of infringement." (Id.
March 3, 2016, Levi filed a Complaint naming Walker,
Twentieth Century Fox, Lee Daniels, and Danny Strong as
defendants, and alleging a single count of copyright
infringement under the Copyright Act. (ECF No. 1.) Daniels,
Strong, and Walker all moved to dismiss. (ECF Nos. 5, 16,
18.) On March 31, 2017, the Court granted Daniels's and
Strong's Motions to Dismiss, finding it lacked personal
jurisdiction over them. (ECF Nos. 27, 28.) The Court also
granted Walker's Motion to Dismiss, finding that Levi
failed to state a claim against Walker, but granted Levi
leave to amend his Complaint. On April 11, 2017, Levi filed
an Amended Complaint. (ECF No. 29.)
Amended Complaint asserts two counts of copyright
Count One: Levi brings this count against
Walker for violation of 17 U.S.C. §
Count Two: Levi brings this count against
Twentieth Century Fox for violation of 17 U.S.C. §
Walker and Twentieth Century Fox have moved to dismiss
Levi's Amended Complaint. Walker argues that Levi's
allegations "fall short of demonstrating that the
Plaintiff owned a valid copyright to his manuscript at the
time that Mr. Walker allegedly made a copy
of the manuscript." (Mem. Supp. Walker Mot. Dismiss 3,
ECF No. 36.) Twentieth Century Fox contends that: (1) Levi
does not allege that Twentieth Century Fox had access to
Unity Incorporated; and, (2)
Empire does not share substantial similarities with
filed a single response to both Motions to Dismiss. Only
Twentieth Century Fox replied.
Analysis: Motions to Dismiss
Motion to Dismiss for Failure
to State a Claim Standard "
motion to dismiss under Rule 12(b)(6) tests the sufficiency
of a complaint; importantly, it does not resolve contests
surrounding the facts, the merits of a claim, or the
applicability of defenses." Republican Party of N.C.
v. Martin, 980 F.2d 943, 952 (4th Cir. 1992) (citing 5A
Charles A. Wright & Arthur R. Miller, Federal
Practice and Procedure § 1356 (1990)). In
considering a motion to dismiss for failure to state a claim,
a plaintiffs well-pleaded allegations are taken as true and
the complaint is viewed in the light most favorable to the
plaintiff. Matkari, 7 F.3d at 1134; see also
Martin, 980 F.2d at 952.
Federal Rules of Civil Procedure "require only 'a
short and plain statement of the claim showing that the
pleader is entitled to relief, ' in order to 'give
the defendant fair notice of what the . .. claim is and the
grounds upon which it rests.'" Bell All. Corp,
v. Twombly, 550 U.S. 544, 555 (2007) (omission in
original) (quoting Conley v. Gibson, 355 U.S. 41, 47
(1957)). Plaintiffs cannot satisfy this standard with
complaints containing only "labels and conclusions"
or a ''formulaic recitation of the elements of a
cause of action." Id. (citations omitted);
see also Ashcroft v. Iqbal, 556 U.S. 662, 679
(2009). Instead, a plaintiff must assert facts that rise
above speculation and conceivability to those stating a claim
that is '"plausible on its face."
Twombly, 550 U.S. at 570. "A claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged."
Iqbal, 556 U.S. at 678 (citing Twombly, 550
U.S. at 556). Therefore, in order for a claim or complaint to
survive dismissal for failure to state a claim, the plaintiff
must "allege facts sufficient to state all the elements
of [his or] her claim." Bass v. E.I. DuPont de
Nemours & Co., 324 F.3d 761, 765 (4th Cir. 2003)
on a motion under Rule 12(b)(6) . . ., matters outside the
pleadings are presented to and not excluded by the court, the
motion must be treated as one for summary judgment under Rule
56, " and "[a]ll parties must be given a reasonable
opportunity to present alt the material that is pertinent to
the motion." Fed.R.Civ.P. 12(d); see Laughlin v.
Metro. Wash. Airports Auth., 149 F.3d 253, 260-61 (4th
Cir. 1998); Gay v. Wall, 761 F.2d 175, 177 (4th Cir.
1985). However, "a court may consider official public
records, documents central to plaintiffs claim, and documents
sufficiently referred to in the complaint [without converting
a Rule 12(b)(6) motion into one for summary judgment] so long
as the authenticity of these documents is not disputed."
Witthohn v. Fed. Ins. Co., 164 Fed.Appx. 395, 396-97
(4th Cir. 2006) (citing Alt. Energy, Inc. v. St.
Paul Fire & Marine Ins. Co., 267 F.3d 30, 33 (1st
Cir. 2001); Phillips v. LCI Int'l, Inc., 190
F.3d 609, 618 (4th Cir. 1999); Gasnerv. Cty. of
Dinwiddle, 162 F.R.D. 280, 282 (E.D. Va. 1995)).
Obligation to Construe Pro Se Pleadings
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, a pro
se plaintiff must nevertheless allege sufficient facts
to state a cause of action. Id. (citing Soda 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).
The Court Will Grant the Twentieth Century Fox
Motion to Dismiss
claims that Twentieth Century Fox infringed his copyright by
"violating his exclusive rights, " 17 U.S.C. §
501(a), "to display [Unity Incorporated]
publicly." 17 U.S.C. § 106(5). The Court will grant
the Twentieth Century Fox Motion to Dismiss because
Levi's Amended Complaint fails to allege facts sufficient
to state all the elements of his claim of copyright
infringement. Levi does not plead facts that plausibly show
that Twentieth Century Fox had actual access to Unity
Incorporated or that Empire is substantially
similar to it.
Copyright Infringement: Legal Standard
who violates any of the exclusive rights of the copyright
owner as provided by sections 106 through 122 ... is an
infringer of the copyright or right of the author, as the
case may be." 17 U.S.C. § 501(a). To prove
copyright infringement, a plaintiff must show that: (1) he or
she owned the copyright to the work that was allegedly
copied; and, (2) the defendant copied protected elements of
that work, Towler v. Sayles, ...