United States District Court, W.D. Virginia, Roanoke Division
Michael F. Urbanski Chief U.S. District Judge
matter comes before the court on Defendant Hannabass &
Rowe, Ltd.'s ("Hannabass") and Defendant
Lindsay Michelle Stinson's ("Stinson") Motions
to Dismiss, both filed on October 16, 2018. ECF No. 17-1; ECF
No. 18-1. Plaintiff Allesandro Cancian ("Plaintiff or
"Cancian") filed the original complaint in this
suit on June 20, 2018. ECF No. 1. Plaintiff filed the amended
complaint against Defendants on October 2, 2018. ECF No. 16.
In response to Defendants' motions to dismiss, Plaintiff
Allesandro Cancian filed a memorandum in opposition on
October 30, 2018. ECF No. 23. For the reasons stated below,
the court now DENIES Defendants'
case arises from alleged copyright infringement. Plaintiff is
a photographer who registered a photograph with the United
States Copyright Office on May 5, 2017. Cancian posted his
copyrighted photograph on the website www.500px.com on March
17, 2012. Plaintiff alleges the copyright was infringed when
Defendants "copied and posted the photo on
Hannabass' commercial website," "on or about
November 23, 2015." ECF No. 16, ¶ 11.
is a corporation formed under the laws of Virginia,
headquartered in Roanoke, Virginia and specializing in car
repair. ECF No. 16, ¶2. Stinson was the sole owner and
member of Stinson Communications LLC ("Stinson
Communications"), a Virginia limited liability company.
ECF No. 16, ¶12. Cancian contacted Stinson through
counsel on February 6, 2017, requesting both that Stinson
remove the photo immediately and that Cancian receive
compensation for the infringement. ECF No. 18-5. The photo
was removed 29 days later. ECF No. 17-1, 2.
12(b)(6) of the Federal Rules of Civil Procedure permits a
party to move for dismissal of a complaint for failure to
state a claim upon which relief can be granted. To survive a
motion to dismiss under Rule 12(b)(6), the plaintiff must
plead sufficient facts "to raise a right to relief above
the speculative level" and "state a claim to relief
that is plausible on its face." Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555, 570 (2007). A plaintiff
establishes "facial plausibility" by pleading
"factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged." Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). In ruling on a 12(b)(6) motion, the
court must accept all well-pleaded allegations in the
complaint as true and draw all reasonable factual inferences
in the light most favorable to the plaintiff. Ibarra v.
United States, 120 F.3d 472, 474 (4th Cir. 1997).
However, "[f]hreadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do
not suffice." Iqbal, 556 U.S. at 678; see
Wag More Dogs, LLC v. Cozart. 680 F.3d 359,
365 (4th Cir. 2012) (holding the court "need not accept
legal conclusions couched as facts or unwarranted inferences,
unreasonable conclusions, or arguments") (internal
quotation marks omitted).
Hannabass and Stinson have both filed motions to dismiss.
These motions will be addressed in turn. As the alleged
actions of Stinson Communications give rise to this suit,
Sanson's motion will be examined first.
motion, Stinson argues that she cannot be held individually
liable for actions performed by Stinson Communications
because Stinson Communications is an LLC. An LLC, or Limited
Liability Company, is a legal entity separate from its
members or owners. Remora Investments. LLC v. Orr.
277 Va. 316, 322, 673 S.E.2d 845, 847 (2009). An LLC thus
shields its members from personal liability for the actions
of the entity. Id. Plaintiffs complaint alleges that
Stinson is "jointly and severally liable for any direct
copyright infringement committed by Stinson Communications
LLC." ECF No. 16, ¶ 20. Plaintiff also alleges that
Stinson is "vicariously liable" for the actions of
Stinson Communications. Id. Plaintiff did not,
however, name Stinson Communications as a defendant in this
case, and instead named Stinson in her individual capacity,
seeking to hold her personally liable. See ECF No.
few factual scenarios permit a plaintiff to bypass the shield
an LLC offers and hold the members of that LLC personally
liable. See In re White. 412 B.R. 860, 865 (Bankr.
W.D. Va. 2009) (stating the limited circumstances justifying
the piercing of an LLC veil). First, a member or officer of
an LLC may be pursued individually for actions taken by die
LLC when a court decides to "pierce the veil."
Id. A court may pierce the veil in three instances:
1) "when die unity of interest and ownership is such
that die separate personalities of die [LLC] and the
individuals no longer exist and to adhere to that
separateness would work an injustice;" 2) where the
individual sought to be held liable attempted to use the LLC
veil to evade a personal obligation, perpetuate a fraud or
crime, commit an injustice, or gain an advantage; and 3)
where the LLC's inability to satisfy a judgment against
it is the result of deliberate under capitalization.
Id. (quoting O'Hazza v. Executive Credit
Corp., 246 Va. 111, 115, 431 S.E.2d 318, 320 (1993));
Dana v. 313 Freemason. Inc., 266 Va. 491, 502, 587
S.E.2d 548, 554 (2003).
has pled no facts indicating that any of die above applies.
Instead, Plaintiff states that Stinson Communications no
longer exists-indeed, Stinson Communications was cancelled
for non-payment of fees on January 31, 2017. ECF No. 16,
¶13; ECF No. 23-1. This fact on its own, however, does
not expose Stinson to personal liability. Virginia's
Limited Liability Company Act (the Act) states that, in die
event of automatic cancellation of an LLC's existence
(due to, for example, a failure to pay fees),
"No member, manager, or other agent of a limited
liability company shall have any personal obligation for any
liabilities of the limited liability company, whether such
liabilities arise in contract, tort, or otherwise, solely by
reason of die cancellation of the limited ...