Treadmilldoctor.com, Inc. v. Johnson, No. 2:2008cv02877 - Document 33 (W.D. Tenn. 2011)
Court Description: ORDER GRANTING 29 Motion to Dismiss. Signed by Judge Samuel H. Mays, Jr., on 3/31/2011. (Mays, Samuel)
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Treadmilldoctor.com, Inc. v. Johnson Doc. 33 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION TREADMILLDOCTOR.COM, INC., Plaintiff, v. DON JOHNSON, Individually, d/b/a EXERCISE EQUIPMENT SERVICE, INC., and d/b/a EXERCISE EQUIPMENT SERVICE, INC., d/b/a TREADMILLPARTZONE.COM, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) No. 08-2877 ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS Before the Court is the August 31, 2010 Motion to Dismiss Second Amended Complaint for Failure to State a Claim (“Motion”) filed by Defendants Don Johnson and Exercise Equipment Service, Inc. (collectively, “Defendants”). (Def.’s Mot. to Dismiss Second Am. Compl. for Failure to State a Claim, ECF No. 29.) (“Defs.’ Mot.”) (“Plaintiff”) responded Plaintiff in TreadmillDoctor.com, opposition on September Inc. 30, 2010. (Pl.’s Resp. to Defs.’ Mot. to Dismiss Second Am. Compl. for Failure to State a Claim, ECF No. 30.) (“Pl.’s Resp.”) For the following reasons, Defendants’ Motion is GRANTED. I. Factual Background Dockets.Justia.com Plaintiff replacement is parts a corporation for that treadmills. provides (Second service Compl. Am. and for Damages and Injunctive Relief ¶¶ 1, 4, ECF No. 25.) Am. Compl.”) maintained (“Second Since December 1, 1999, Plaintiff has continuously a website, TreadmillDoctor.com, which provides exercise equipment reviews as a service to potential customers and as a means to attract potential customers to Plaintiff’s internet-based salesroom. (Id. ¶¶ 4, 6.) On the website, Plaintiff maintains a notice of copyright as to all intellectual property contained on the website. (Id. ¶ 10.) Plaintiff alleges that, on November 30, 2007, it received a (Id. ¶ certificate of registration for portions of its website. 7.) Plaintiff has attached a copy of that certificate to the Second Amended Complaint. (See id.; Ex. I, ECF No. 25-8.) However, Plaintiff’s name does not appear on the certificate. (See Ex. I.) The certificate lists the copyright claimant as William Stevenson Clark and the authors of the copyrighted property, entitled “Treadmill & Elliptical Reviews – 2008,” as William Clark Stevenson and Jon David Stevenson. Second Amended Complaint does not allege that (See id.) William The Clark Stevenson or Jon David Stevenson transferred the certificate of registration to Plaintiff. (See Second Am. Compl.) It also does not allege that Defendants copied or otherwise infringed 2 the copyright registration. of materials protected by that certificate of (See id.) On December 23, 2008, Plaintiff submitted an application for copyright website. registration (Id. ¶ 8.) of additional portions of its It has attached a copy of that application to the Second Amended Complaint. (See id.; Ex. F, ECF No. 25- 5.) Plaintiff’s The application contains name and lists Plaintiff as the author and copyright claimant for five specific pieces of material: (1) 2008 Elliptical Best Buy Awards, (2) 2008 Elliptical Reviews, (3) 2008 Treadmill Best Buy Awards, (4) Troubleshooting Guide, and (5) 2008 Treadmill Reviews. (See Ex. F, at 2-4, 12, 22, 32, 42.) Plaintiff has not received a certificate response of registration in to the application. (Second Am. Compl. ¶ 8.) On January 18, 2010, Plaintiff submitted an application for copyright registration for the entirety of its website. Am. Compl. ¶ 9.) (Second It has attached a copy of that application and an email indicating its receipt by the Copyright Office to the Second Amended Complaint. ECF No. 25-7.) (See id.; Ex. G, ECF No. 25-6; Ex. H, The application contains Plaintiff’s name and lists Plaintiff as the author and copyright claimant. G, at 2-3.) what the potential (See Ex. In response to a question on the application asking author created responses, and providing Plaintiff checked 3 empty the box boxes for next to “Computer program.” (Id. at 2.) It did not check the box for “Text/poetry,” “Editing,” “Collective Work,” or “Compilation,” and did not fill in empty space on the application following the words “Other.” (See id.) Plaintiff has not indicated whether it has received a certificate of registration in response to the application. (See Second Am. Compl.) Plaintiff states, “That Defendants have committed numerous violations of Plaintiff’s intellectual property rights and infringement on Plaintiff’s copyrights, both Federal and common law, as of August 2008 by copying copyrighted materials from Plaintiff’s websites and using the copyrighted material Defendants’ websites without compensating Plaintiff.” on (Id. ¶ 11.) In website, support, Plaintiff has TreadmillDoctor.com, TreadmillPartsZone.com, to attached and the printouts Defendants’ Second from its website, Amended Complaint purportedly representing copyright infringement by Defendants. (See id. ¶¶ 2-3, 11-13; Ex. A, ECF No. 25-1; Ex. B, ECF No. 252.) Those printouts show, among other things, substantially similar language in the “terms of service” sections and return policies listed on both websites. (See Ex. A, at 3-5; Ex. B, at 3-9.) Plaintiff also alleges that it maintains a list of references on its website and that Defendants copied and placed 4 that list on their website. 13.) (See Second Am. Compl. ¶¶ 2-3, 12- Plaintiff has attached to the Second Amended Complaint copies of the reference TreadmillPartsZone.com. Ex. D, ECF No. 25-4.) Complaint show lists from TreadmillDoctor.com and (See id. ¶¶ 12-13; Ex. C, ECF No. 25-3; The copies attached to the Second Amended similar lists of service providers servicing fitness equipment in Massachusetts. presumably (See Ex. C, at 1; Ex. D, at 1.) The Second Amended Complaint states, “That Defendants have and are works intentionally infringing on violation [copyright law] in of Plaintiff’s in an effort business from Plaintiff and harm the Plaintiff.” Compl. ¶ 17.) copyrighted to take (Second Am. It also states that Plaintiff has suffered and will continue to suffer irreparable harm to its business and goodwill if Defendants are not enjoined from infringing (See id. ¶ 15.) Plaintiff’s copyrighted material. on It then lists two counts: (1) intentional infringement of copyrighted work and (2) relationships. Plaintiff intentional interference with (See id. at 4-5.) originally filed a complaint for damages injunctive relief with this Court on December 30, 2008. for Damages and Injunctive Relief, ECF No. 1.) and (Compl. With the Court’s permission, Plaintiff filed an amended complaint. No. 10.) business (Order, ECF On January 20, 2010, Defendants moved to dismiss the 5 amended complaint’s subject matter copyright jurisdiction infringement and its claim for intentional lack of interference with business relationships claim for failure to state a claim on which relief may be granted. (See Defs.’ Mot. to Dismiss for Lack of Subject Matter Jurisdiction 1-3, ECF No. 11.) After responding in opposition to that motion to dismiss, Plaintiff moved to file the Second Amended Complaint. ECF No. 14; Defendants’ Second Mot., motion to ECF No. dismiss 15.) (See Pl.’s Resp., This the Court amended granted complaint’s intentional interference with business relationships claim, but denied that motion as to Plaintiff’s copyright infringement claim and granted Plaintiff leave to file the Second Amended Complaint. (See Order 6-14, ECF No. 21.) Plaintiff filed the Second Amended Complaint on July 10, 2010, asserting intentional for interference notwithstanding interference claims the with state a claim. infringement with Court’s business copyright business order dismissing relationship claim (See Second Am. Compl. 4-6.) relationships, the intentional for failure to Defendants then filed the Motion now before the Court on August 31, 2010. Defs.’ Mot. 1-2.) and (See In its response, Plaintiff concedes that its claim for copyright infringement under common law is preempted by 17 U.S.C. §§ 1 et seq. No. 30-1.) (“Pl.’s Mem.”) (Mem. in Supp. of Pl.’s Resp. 3, ECF It also concedes that the Court has 6 dismissed its intentional interference with business relationships claim and states that it did not intend to revive that claim in the Second Amended Complaint. (See id.) Accordingly, Plaintiff’s intentional interference with business relationships claim is DISMISSED. II. Jurisdiction This Court has previously found that it has jurisdiction pursuant to 28 U.S.C. § 1332. (Order 3, ECF No. 21.) Based on the allegations in the Second Amended Complaint now before the Court, this Court has subject-matter jurisdiction over Plaintiff’s copyright infringement claim under 28 U.S.C. §§ 1331 and 1338. See 28 U.S.C. §§ 1331, 1338; Reed Elsevier, Inc. v. Muchnick, 130 S. Ct. 1237, 1246 (2010); Zomba Enters., Inc. v. Panorama Records, Inc., 491 F.3d 574, 580 (6th Cir. 2007). III. Standard of Review In addressing a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6), the Court must construe the complaint in the light most favorable to the plaintiff and accept all well-pled factual allegations as true. League of United Latin Am. Citizens v. Bredesen, 500 F.3d 523, 527 (6th Cir. 2007). A plaintiff can support a claim “by showing any set of facts consistent with the allegations in the complaint.” (2007). Bell Atl. Corp. v. Twombly, 550 U.S. 544, 563 This standard requires more than bare assertions of 7 legal conclusions. Bovee v. Coopers & Lybrand C.P.A., 272 F.3d 356, 361 (6th Cir. 2001) (citation omitted). “[A] formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555. Any claim for relief must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” facts are not Fed. R. Civ. P. 8(a)(2). necessary; the statement need only “Specific ‘give the defendant fair notice of what the . . . claim is and the grounds Erickson v. Pardus, 551 U.S. 89, 93 upon which it rests.’” (2007) (per curiam) Nonetheless, a (quoting complaint 550 Twombly, must contain U.S. sufficient at 555). facts “to ‘state a claim to relief that is plausible on its face’” to survive a motion to dismiss. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570). plausibility standard is not akin to a “The ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” U.S. at 556). of action, suffice.” Id. (citing Twombly, 550 “Threadbare recitals of the elements of a cause supported by mere conclusory Id. (citation omitted). statements, do not A plaintiff with no facts and “armed with nothing more than conclusions” cannot “unlock the doors of discovery.” IV. Id. at 1950. Analysis 8 “Copyright infringement has two elements: ‘(1) ownership of a valid copyright; and (2) copying of constituent elements of the work that are original.’” Music Corp., Stromback 2004)); v. 508 New Line Zomba accord omitted). F.3d Bridgeport Music, Inc. v. WM 394, 398 Cinema, 384 Enters., (6th 491 Cir. F.3d 283, F.3d at 2007) 293 581 (quoting (6th Cir. (citations “The legal or beneficial owner of an exclusive right under a copyright is entitled, subject to the requirements of section 411, to institute an action for any infringement of that particular right committed while he or she is the owner of it.” 17 U.S.C. § 501(b). Section 411 states, in relevant part, that “[n]o civil action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title.” 17 U.S.C. § 411(a). In Reed Elsevier, the Supreme Court clarified the effect of § 411(a)’s registration requirement. Ct. at 1241. divest It held that the registration requirement does not federal copyright See Reed Elsevier, 130 S. courts infringement of subject-matter claims where the jurisdiction copyright failed to comply with the registration requirement. 1241, 1249. Instead, the “registration over holder has See id. at requirement is a precondition to filing a claim that does not restrict a federal court’s subject-matter jurisdiction.” 9 Id. at 1241. A “precondition” is “something that must exist before something else can come about.” Webster’s Third New International Dictionary 1785 (1986). When a plaintiff files a copyright infringement action before preregistration or registration of the copyright claim has occurred, the “precondition” required by § 411(a) is not See Reed Elsevier, 130 S. Ct. at 1241 (holding that satisfied. registration of a copyright “is a precondition to filing a claim”); Coles v. Wonder, 283 F.3d 798, 801 (6th Cir. 2002) (“While copyright protection dates from the time that an artist creates an original work that may be copyrighted, such as a song, a cause of action for infringement cannot be enforced until the artist actually registers the copyright pursuant to the requirements of the Copyright Act.”) (citing 17 U.S.C. § 411(a)); Murray Hill Publ’ns, Inc. v. ABC Commc’ns, Inc., 264 F.3d 622, 630 (6th Cir. 2001) (stating that “[a] copyright owner must formally register a derivative work with the United States Copyright Office infringement of as a that prerequisite derivative to work”), filing a abrogated suit on for other grounds, Reed Elsevier, 130 S. Ct. 1237; Bus. Audio Plus, L.L.C. v. Commerce Bank, NA, No. 4:10CV2064, 2011 WL 250670, at *2 (E.D. Mo. Jan. infringement 26, claim 2011) (dismissing because plaintiff plaintiff’s failed to copyright allege or demonstrate the existence of a valid copyright registration in 10 its literary works) (citations omitted); cf. La Resolana Architects, PA v. Clay Realtors Angel Fire, 416 F.3d 1195, 1200 (10th Cir. 2005) (“The plain language of the statute thus requires a series of affirmative steps by both the applicant and the Copyright Office. No language in the Act suggests that registration is accomplished by mere receipt of copyrightable material by the Copyright Office. Instead, the Register of Copyrights must affirmatively determine copyright protection is warranted, § 411, before registration occurs under the Act.”), abrogated on other grounds, Reed Elsevier, 130 S. Ct. 1237. Although the district court has jurisdiction, the action is subject to dismissal when a defendant action for failure to state a claim. moves to dismiss the See Sony/ATV Music Publ’g LLC v. D.J. Miller Music Distribs., Inc., No. 3:09-cv-01098, 2010 WL 3872802, at *4 (M.D. Tenn. Sept. 28, 2010) (concluding after Reed Elsevier that, copyright registrations copyright infringement for where six action, plaintiffs songs their did before not they copyright obtain filed a infringement claims for the six songs were subject to dismissal for failure to state a claim); Pont Lezica v. Cumulus Media, Inc., No. 3:09cv-912, 2010 (granting WL motion 711792, to at dismiss *2-3 a (M.D. Tenn. copyright Feb. 23, 2010) infringement claim because the plaintiff did not allege that the Copyright Office had approved or denied his application to copyright material at 11 issue), abrogated on other grounds, Reed Elsevier, 130 S. Ct. 1237; Specific Advisors, LLC, Software 615 F. Solutions, Supp. 2d LLC 708, v. Inst. of WorkComp 716 (M.D. Tenn. 2009) (“Plainly, Congress intended a scheme in which, before an entity could sue on a claim of copyright infringement, the Copyright Office would be entitled to pass, in an essentially non-binding manner, on the vitality of the copyright.”), abrogated on other grounds, Reed Elsevier, 130 S. Ct. 1237. If the action were not subject to dismissal, the registration requirement would not be a “precondition” to filing a copyright infringement action. Reed Elsevier, 130 S. Ct. at 1241; Webster’s Third See New International Dictionary 1785 (1986). Here, Plaintiff alleges that, on November 30, 2007, it received a certificate of registration from the Copyright Office for portions of its website. (See Second Am. Compl. ¶ 7.) Plaintiff has attached a copy of the certificate of registration on which it bases the factual assertion to the Second Amended Complaint. (See id.; Ex. I.) The certificate of registration attached to the Second Amended Complaint contradicts the factual assertion. (See Ex. I.) the certificate. Plaintiff’s name does not appear on (See id.) Instead, the certificate lists the copyright claimant as William Clark Stevenson and the authors of the copyrighted David Stevenson. property as (See id.) William Clark Stevenson and Jon When allegations in a complaint are 12 contradicted by written exhibits attached to the complaint, “the exhibits trump the allegations.” Abcarian v. McDonald, 617 F.3d 931, 933 (7th Cir. 2010) (citation omitted); accord ALA, Inc. v. CCAIR, Inc., 29 F.3d 855, 859 n.8 (3d Cir. 1994) (citation omitted); Fayetteville Investors v. Commercial Builders, Inc., 936 F.2d 1462, 1465 (4th Cir. 1991) (citation omitted); Hamilton Foundry & Mach. Co. v. Int’l Molders & Foundry Workers Union of N. Am., 193 F.2d 209, 216 (6th Cir. 1952) (citations omitted). As Defendants correctly argue, Plaintiff does not allege in the Second Amended Complaint that William Clark Stevenson or Jon David Stevenson transferred registration to Plaintiff. ownership (See of the certificate of Second Am. Compl. ¶¶ 1-17; Defs.’ Mem. in Supp. of Their Mot. to Dismiss Pl.’s Second Am. Compl. 9-10, ECF No. 29-1.) Although Plaintiff argues in its response that William Clark Stevenson registered the copyright as Plaintiff’s agent and does not claim individual ownership of the copyrighted material (Pl.’s Mem. 4), this Court may not consider matters reviewing Defendants’ Morgan Chase Bank, beyond the motion N.A., 537 Second to Amended dismiss. F.3d 565, See 576 Complaint in Winget JP (6th Cir. v. 2008) (citation omitted). Based on the allegations in the Second Amended Complaint, Plaintiff has not pled facts plausibly demonstrating that it has an ownership interest in the materials protected by the November 13 30, 2007 certificate of registration. Plaintiff has also failed to allege that Defendants copied any information protected by that particular certificate of registration. (See Second Am. Compl. Ex. ¶¶ 7, 11-13; Ex. A; Ex. B; Ex. C; D; Ex. I.) Therefore, Plaintiff has failed to state a claim for copyright infringement of registration. materials protected by the certificate of See Iqbal, 129 S. Ct. at 1949; Bridgeport Music, 508 F.3d at 398; Zomba Enters., 491 F.3d at 581. On December 23, 2008, Plaintiff submitted an application for copyright registration of additional portions of its website, including five specific pieces of material: (1) 2008 Elliptical Best Buy Awards, (2) 2008 Elliptical Reviews, (3) 2008 Treadmill Best Buy Awards, (4) Troubleshooting Guide, and (5) 2008 Treadmill Reviews. (See Second Am. Compl. ¶ 8; Ex. F, at 2-4, 12, 22, 32, 42.) However, Plaintiff does not allege that Defendants copied any material included in that application and admits that it has not received a certificate (See Second Am. registration in response to that application. Compl. ¶¶ Plaintiff 8, 11-13; Ex. A; also does not allege copyright claim. Ex. B; Ex. that it of C; Ex. has D; Ex. F.) registered its Therefore, Plaintiff has failed to state a claim for copyright infringement of materials for which it seeks protection through the December 23, 2008 application. Elsevier, 130 S. Ct. at 1241; 14 Iqbal, 129 S. Ct. See Reed at 1949; Bridgeport Music, 508 F.3d at 398; Zomba Enters., 491 F.3d at 581; La Resolana Architects, PA, 416 F.3d at 1200; Coles, 283 F.3d at 801; Bus. Audio Plus, L.L.C., 2011 WL 250670, at *2; Sony/ATV Music Publ’g LLC, 2010 WL 3872802, at *4. On January 18, 2010, Plaintiff submitted an application for copyright registration for the entirety of its website. Am. Compl. ¶ 9.) (Second Plaintiff does not allege that it has received a certificate of registration in response to that application or that it has registered its copyright claim. id.) (See Plaintiff has attached a copy of that application to the Second (See id.; Ex. G.) Amended Complaint. copyright protection “Text/poetry,” for “Editing,” “Compilation.” a a That application seeks “Computer program,” “Collective (See Ex. G, at 2.) Work,” or a Plaintiff does not allege (See Second Am. that Defendants copied its computer program. Compl. ¶¶ 11-14.) not Instead, Plaintiff alleges that Defendants copied text from its website, such as its terms of service, return policies, and list of service providers. Ex. A; Ex. B; Ex. C; Ex. D.) (See id. ¶ 11; The Second Amended Complaint does not state, and Plaintiff’s response to Defendants’ Motion does not argue, that a copyright of a computer program would include the contents of its Resp.; Pl.’s Mem.) website. (See Second Am. Compl; Pl.’s Therefore, Plaintiff has failed to state a plausible copyright infringement claim. 15 See Reed Elsevier, 130 S. Ct. at 1241; Iqbal, 129 S. Ct. at 1949; Bridgeport Music, 508 F.3d at 398; Zomba Enters., 491 F.3d at 581; La Resolana Architects, PA, 416 F.3d at 1200; Coles, 283 F.3d at 801; Bus. Audio Plus, L.L.C., 2011 WL 250670, at *2; Sony/ATV Music Publ’g LLC, 2010 WL 3872802, at *4. Defendants’ Motion must be granted. Plaintiff argues that Defendants’ Motion should be denied because their filing suit argument “is that more lack of registration appropriately 12(b)(1) as a jurisdictional issue.” considered precludes under Rule (See Pl.’s Mem. 4.) In support, Plaintiff cites Specific Software Solutions, a case in which the United States District Court for the Middle District of Tennessee dismissed a copyright infringement action for lack of jurisdiction because the plaintiff had failed to comply with § 411(a)’s registration requirement. Solutions, 615 F. Supp. 2d at 716. Court has held that a See Specific Software Since that case, the Supreme plaintiff’s failure to comply with § 411(a)’s registration requirement does not divest a district court of subject-matter jurisdiction. Ct. at 1241. Instead, the plaintiff precondition to filing a claim.” where a plaintiff does not See Reed Elsevier, 130 S. Id. satisfy fails to satisfy “a After Reed Elsevier, that precondition, a defendant may challenge the legal sufficiency of a copyright infringement claim through a motion 16 to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). See, e.g., Bus. Audio Plus, L.L.C., 2011 WL 250670, at *2; Sony/ATV Music Publ’g LLC, 2010 WL 3872802, at *4. Therefore, Plaintiff’s argument is not well-taken. V. Conclusion For the foregoing reasons, Defendants’ Motion is GRANTED. So ordered this 31st day of March, 2011. s/ Samuel H. Mays, Jr. SAMUEL H. MAYS, JR. UNITED STATES DISTRICT JUDGE 17
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