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Levi v. Twentieth Century Fox Film Corp.

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

March 29, 2018

TIMOTHY J. LEVI, Plaintiff,


          M. Harunah Lauck United States District Judge

         This 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)[1] (the "Twentieth Century Fox Motion to Dismiss"), (ECF No. 32)[2]; 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 No. 35).[3]

         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 28U.S.C. § 1331.[4] For the reasons that follow, the Court will grant the Twentieth Century Fox Motion to Dismiss and deny the Walker Motion to Dismiss.

         I. Procedural and Factual Background A. Factual Background'[5]

         Levi's 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Complaint arises out of the alleged copyright infringement by the Twentieth Century Fox television series Empire of his unpublished book, Unity Incorporated: The Mastermind ("Unity Incorporated") and Walker's alleged copying of Unity Incorporated.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.[6] 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 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.

         Levi 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. ¶¶ 20-21.)

         B. Procedural Background

         On 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.)

         Levi's Amended Complaint asserts two counts of copyright infringement:

Count One: Levi brings this count against Walker for violation of 17 U.S.C. § 106(1).[7]
Count Two: Levi brings this count against Twentieth Century Fox for violation of 17 U.S.C. § 106(5).[8]

         Both 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 Unity Incorporated.

         Levi filed a single response to both Motions to Dismiss. Only Twentieth Century Fox replied.

         II. Analysis: Motions to Dismiss

         A. Motion to Dismiss for Failure to State a Claim Standard "

         A 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.

         The 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) (citations omitted).

         "If, 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)).

         B. Obligation to Construe Pro Se Pleadings Liberally

         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, 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).

         C. The Court Will Grant the Twentieth Century Fox Motion to Dismiss

         Levi 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.

         1. Copyright Infringement: Legal Standard

         "Anyone 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, ...

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