Burkitt v. Flawless Records, Inc.

Full title: KENNETH L. BURKITT, JR., et al. v. FLAWLESS RECORDS, INC., et al

Court: United States District Court, E.D. Louisiana

Date published: Jun 10, 2005

Civil Action No. 03-2483 Section: I/5 (E.D. La. Jun. 10, 2005)

Opinion

Civil Action No. 03-2483 Section: I/5.

June 10, 2005

ORDER AND REASONS

LANCE AFRICK, Magistrate Judge

Before the Court are three motions to dismiss filed pursuant to Rule 12(b) of the Federal Rules of Civil Procedure. Also before the Court is a request that the Court take judicial notice of several exhibits filed by defendants in conjunction with their motions to dismiss. Plaintiffs have not opposed defendants' request for judicial notice.

Background

This lawsuit arises from a copyright and trademark dispute between current and former members of the rock band Puddle of Mudd. From 1993 to 1999, plaintiffs, Kenneth L. Burkitt, Jr. ("Burkitt") and Sean D. Sammon ("Sammon"), were members of Puddle of Mudd along with defendant Wesley R. Scantlin ("Scantlin").¹ Plaintiffs allege that they jointly authored a number of musical compositions with Scantlin during those years.² Sometime in late 1999 or early 2000, Scantlin and plaintiffs severed their musical/business relationship, but Scantlin continued with Puddle of Mudd.³ Scantlin and the band, without plaintiffs, have since had a significant amount of success.⁴ The musical compositions at issue include sound recordings that appeared on the band's albums which were released or re-released after plaintiffs were no longer members of Puddle of Mudd.

1 Rec. Doc. No. 27, ¶ 24.

2 Rec. Doc. No. 27, ¶ 24. The songs at issue are found on Puddle of Mudd's 1994 album Stuck, 1997 album Abrasive, and 2001 album Come Clean. Rec. Doc. No. 27. Burkitt was the band's drummer, Sammon was the bassist, and defendant Scantlin was the lead singer. Rec. Doc. No. 27, ¶¶ 26-28.

3 Rec. Doc. No. 27, ¶ 48.

4 Rec. Doc. No. 27, ¶¶ 70, 79.

Defendants, Flawless Records, Inc., Geffen Records, Inc., Interscope Records, Inc., Universal Music Video Distribution Corporation, and Fred Durst (hereinafter collectively "Universal Defendants"), are involved in the recording industry and are alleged to be affiliated with or to have conducted business with defendants, Scantlin and Puddle of Mudd,⁵ after plaintiffs no longer had any involvement with the band.⁶ Specifically, plaintiffs allege that the Universal Defendants, Scantlin, and others conspired to form a musical group that did not include Burkitt and Sammon and to exploit musical compositions and the "Puddle of Mudd" trademark in which both Burkitt and Sammon allegedly have an interest.⁷

5 Plaintiffs allege that Puddle of Mudd is a business entity operated by Scantlin. See Rec. Doc. No. 27, ¶ 63.

6 Rec. Doc. No. 27, ¶¶ 4-7, 14, 46, 48-69.

7 Rec. Doc. No. 27, ¶ 58.

On April 14, 2004, the Universal Defendants filed a motion to dismiss Burkitt's complaint for failure to state a claim pursuant to Rule 12(b)(6).⁸ Subsequently, on April 20, 2004, Burkitt filed a first amended and supplemental complaint ("FAC"), adding Sean D. Sammon ("Sammon") as a plaintiff, additional claims, and additional defendants.⁹

8 Rec. Doc. No. 25.

9 Rec. Doc. No. 27. The first amended and supplemental complaint ("FAC") alleges that Sammon is also a co-author of songs and a co-owner of the "Puddle of Mudd" trademark.
The FAC contains fourteen claims: 1) declaratory relief; 2) copyright infringement; 3) trademark infringement; 4) breach of fiduciary duty/partnership contract; 5) breach of contract; 6) conversion; 7) misappropriation; 8) unjust enrichment; 9) unfair trade practices and/or competition; 10) reverse palming off; 11) intentional interference with business relations and/or contract; 12) accounting; 13) abuse of right; and 14) legal fault. Rec. Doc. No. 27.
On September 2, 2004, most of the defendants added in the FAC, Phat Phunk Records, James C. Allen, Paul Phillips, Doug Ardito, Greg Upchurch, Jordan Rocks Music, The Thick Plottens, and Sour Jane Music, were dismissed without prejudice for plaintiffs' failure to prosecute. See Rec. Doc. No. 55. On December 20, 2004, WB Music Corporation, the only newly added defendant to do so, answered the FAC. Rec. Doc. No. 61.

Based on the alleged commercial exploitation of the musical compositions at issue and the "Puddle of Mudd" trademark, plaintiffs have used a kitchen sink approach and they have plead claims against all of the defendants for declaratory relief pursuant to the Copyright Act, copyright infringement, trademark infringement, violations of § 43(a) of the Lanham Act, as well as state law claims for conversion, misappropriation of property, unjust enrichment, unfair trade practices and/or competition, an accounting, abuse of right, and legal fault. Plaintiffs also assert a claim solely against the Universal Defendants for intentional interference with business relations. Additionally, plaintiffs allege breach of contract against Scantlin and Puddle of Mudd, and breach of fiduciary duty and breach of partnership contract solely against Scantlin.

The following motions are before the Court:

1) On May 4, 2004, the Universal Defendants filed a 12(b) (6) motion to dismiss plaintiffs' FAC on the same grounds stated in their previous motion to dismiss Burkitt's complaint;¹⁰

10 Rec. Doc. No. 29. The Universal Defendants' second motion to dismiss incorporates by reference their previous motion to dismiss (Rec. Doc. No. 25). The Court dismissed the Universal Defendants' first motion as moot. See Rec. Doc. No. 75.

2) On May 6, 2004, defendants, Scantlin and Puddle of Mudd, moved to dismiss Burkitt's claims on the ground that venue is improper pursuant to Rule 12(b)(3) or, alternatively, to have the action transferred to the United States District Court for the Central District of California pursuant to 28 U.S.C. § 1406(a).¹¹ Solely in the alternative, Scantlin and Puddle of Mudd moved to dismiss Burkitt's claims for failure to state a claim upon which relief may be granted pursuant to Rule 12(b)(6);¹²

11 Rec. Doc. No. 30. The Universal Defendants originally urged dismissal on the basis of improper venue "as demonstrated by the motion to dismiss filed by Puddle of Mudd and Scantlin (in which the Universal Defendants join)." Rec. Doc No. 25, p. 2 n. 3. The Universal Defendants did not reurge the venue issue in their second motion. See Rec. Doc. No. 29. The Universal Defendants waived any venue argument in their supplemental memorandum. Rec. Doc. No. 79.

12 Rec. Doc. No. 30. On April 7, 2004, defendants, Scantlin and Puddle of Mudd, filed a motion to dismiss. (Rec. Doc. No. 19) When Burkitt amended his complaint, they moved to dismiss their original motion without prejudice (Rec. Doc. No. 33) and filed the motion currently pending (Rec. Doc. No. 30) contemporaneously with the motion to dismiss the claims of the newly added plaintiff, Sammon (Rec. Doc. No. 31).

3) On May 6, 2004, Scantlin and Puddle of Mudd also filed a motion to dismiss the claims of Sammon for failure to state a claim pursuant to Rule 12(b)(6);¹³ and

13 Rec. Doc. No. 31. After giving notice to the parties, the motion to dismiss the claims of Sean Sammon has been converted to a motion for summary judgment as discussed in Part III of this Order and Reasons.

4) On May 6, 2004, pursuant to Rule 201 of the Federal Rules of Evidence, Scantlin and Puddle of Mudd filed a request for judicial notice of several exhibits in conjunction with their motions to dismiss.¹⁴

14 Rec. Doc. No. 32.

I. Scantlin Puddle of Mudd's Request for Judicial Notice

Defendants, Scantlin and Puddle of Mudd, request that the Court take judicial notice of several exhibits.¹⁵ Pursuant to Rule 201(b) of the Federal Rules of Evidence, courts may take judicial notice of adjudicative facts that are not subject to reasonable dispute, either because they are "(1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Fed.R.Evid. 201(b). The Court addresses each exhibit for which judicial notice is requested.

15 Rec. Doc. No. 32. Scantlin and Puddle of Mudd request that the Court take judicial notice of the following: 1) the liner notes from two albums, Struck and Come Clean, by Puddle of Mudd (exhibits 1 and 2); 2) trademark registrations filed with the United States Patent and Trademark Office for the service mark "Puddle of Mudd" (exhibit 3); 3) Certificates of Copyright Registration for four (4) songs (exhibit 4); 4) California's Secretary of State data reflecting the location of the registered office of Universal Music Video Distribution, Corp. (exhibit 5); 5) a web page purporting to show defendant Interscope Records's office location (exhibit 6); and 6) a settlement agreement and release between plaintiff Sammon and Puddle of Mudd (exhibit 7).

A. Copyright Certificates and Trademark Registrations

Defendants submit a trademark registration for the service mark "Puddle of Mudd" filed with the United States Patent and Trademark Office and certificates of copyright registration for four (4) songs.¹⁶ Both copyright certificates and trademark registrations are the type of evidence that a court may judicially notice pursuant to Rule 201(b)(2). See Idema v. Dreamworks, Inc., No. CV 00-10316, 2003 WL 23095763, at *1 (9th Cir. Dec. 24, 2003); Warren v. Fox Family Worldwide, Inc., 171 F. Supp. 2d 1057, 1062 (C.D. Cal. 2001). Accordingly, these exhibits may be considered by the Court in addressing defendants' venue defense pursuant to Rule 12(b)(3) and defendants' motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6).

16 Rec. Doc. No. 32, exhibits 3 and 4. The four songs for which the Copyright Office issued certificates of registration to Scantlin and others are "Drift Die," "Nobody Told Me," "Piss It All Away," and "Said."

B. Websites

Defendants' submission of a printed copy of the contents of an Internet web page which purports to reflect defendant Interscope Records's mailing address cannot be judicially noticed as evidence of that defendant's domicile, residence or otherwise.¹⁷ The information contained on the web page cannot be characterized as generally known within the Eastern District of Louisiana or capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. See Scanlan v. Texas AM Univ., 343 F.3d 533, 537 (5th Cir. 2003) (finding it improper to take judicial notice of information contained on an internet site that was "defendant-created").

17 Rec. Doc. No. 32, exhibit 6.

Likewise, defendants' submission of the results from an Internet search performed on Lexis's website which contains information about defendant Universal Music Video Distribution Corporation's registered office with the California Secretary of State cannot be noticed judicially because the information is not "capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Fed.R.Evid. 201(b). First, the information is not contained in a current certified copy from a government agency.¹⁸ Second, as the exhibit itself reads, the information is for "informational purposes only" and "certification can only be obtained through the issuing government agency." Accordingly, the Court denies defendants' request that it take judicial notice of the information located on these websites.

18 Rec. Doc. No. 32, exhibit 5.

C. Settlement Agreement

Defendants also submit a copy of a document alleged to be a contract between defendant Scantlin, two other current members of Puddle of Mudd who are not parties to this lawsuit, and plaintiff Sammon.¹⁹ The contract appears to be a settlement and release agreement between private parties. Notwithstanding plaintiffs' failure to oppose defendants' request for judicial notice, defendants have not provided the Court with a sufficient basis for it to take judicial notice of this document. Furthermore, pursuant to Rule 201(b), the private agreement is not the type of evidence appropriate for judicial notice. See Gen. Elec. Capital Corp. v. Lease Resolution Corp., 128 F.3d 1074, 1084 (7th Cir. 1997) (finding lower court's reliance on a private agreement inappropriate); Krahel v. Owens-Brockway Glass Container, Inc., 971 F. Supp. 440, 450 n. 8 (D. Or. 1997) (questioning the propriety of taking judicial notice of an agreement between private parties).

19 Rec. Doc. No. 32, exhibit 7.

D. Liner Notes

Defendants also submit copies of liner notes from two Puddle of Mudd albums.²⁰ These copies may be "true and correct," however, the Court cannot say that the information contained in the liner notes is "capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." While the liner notes appear to have been published, the Court knows of no method for verifying the accuracy of the information contained within the albums' liner notes. The Court finds that pursuant to Rule 201(a), it may not take judicial notice of the liner notes.

20 Rec. Doc. No. 32, exhibits 1 2.

II. Scantlin Puddle of Mudd's Motion to Dismiss or Transfer Burkitt's Claims

With respect to Burkitt's claims, Scantlin and Puddle of Mudd challenge the propriety of venue in this district and, solely in the alternative, move to dismiss his claims for failure to state a claim.²¹ When venue is challenged, the burden is on the plaintiff to establish that the district he chose is a proper venue. Langton v. CBeyond Communication, L.L.C., 282 F. Supp. 2d 504, 508 (E.D. Tex. 2003); Smith v. Fortenberry, 903 F. Supp. 1018, 1020 (E.D. La. 1995) (citing 15 WRIGHT, MILLER COOPER, FEDERAL PRACTICE AND PROCEDURE: JURISDICTION 2d § 3826). In most instances, "the purpose of the statutorily specified venue is to protect the defendant against the risk that a plaintiff will select an unfair or inconvenient" forum. Leroy v. Great Western United Corp., 443 U.S. 173, 183-84, 99 S. Ct. 2710, 2716, 61 L. Ed. 2d 464 (1979) (emphasis omitted). The general rule is that venue must be established for each separate cause of action and for each defendant. See Beattie v. United States, 756 F.2d 91, 100 (D.C. Cir. 1984); McCaskey v. Cont'l Airlines, Inc., 133 F. Supp. 2d 514, 523 (S.D. Tex. 2001) ("[i]t is well established that in a case involving multiple defendants and multiple claims, the plaintiff bears the burden of showing that venue is appropriate as to each claim and as to each defendant") (alteration in original) (quoting Hickey v. St. Martin's Press, Inc., 978 F. Supp. 230, 240 (D. Md. 1997)).

21 Rec. Doc. No. 30. With respect to Sammon, defendants, Scantlin and Puddle of Mudd, have waived any venue defense. See Fed.R.Civ.P. 12(h) (1) (providing waiver of certain defenses, including venue); Rogers v. Hartford Life and Accident Ins. Co., 167 F.3d 933, 942 (5th Cir. 1999) (citing Hoffman v. Blaski, 363 U.S. 335, 80 S. Ct. 1084, 4 L. Ed. 2d 1254 (1960)); Ky. Fried Chicken Corp. v. Diversified Packaging Corp., 549 F.2d 368, 392 (5th Cir. 1977) (citing Rule 12(h)(1)). The Universal Defendants have also waived any defense of improper venue with respect to both Burkitt and Sammon. See Fed.R.Civ.P. 12(h); Rogers, 167 F.3d at 942.

When resolving a Rule 12(b)(3) motion without an evidentiary hearing, a court accepts a plaintiff's well-pleaded factual allegations as true and draws all reasonable inferences in plaintiff's favor. See Langton, 282 F. Supp. 2d at 508; McCaskey, 133 F. Supp. 2d at 523. Furthermore, the Court resolves any conflicts in plaintiff's favor. McCaskey, 133 F. Supp. 2d at 523. Courts have provided the plaintiff with the benefit of the doubt when determining the governing facts. Id. Unlike a Rule 12(b) (6) motion, however, a court may consider extrinsic materials, including affidavits and other materials, in determining whether venue is proper. See Murphy v. Schneider Nat'l, Inc., 362 F.3d 1133, 1137 (9th Cir. 2004); The CIT Group/Commercial Servs., Inc. v. Romansa Apparel, Inc., No. 3:02-CV-1954-P, 2003 WL 169208, at *2 (N.D. Tex. Jan. 21, 2003) ("the court accepts uncontroverted facts alleged in the complaint as true and resolves conflicts in the parties' affidavits in favor of the plaintiff"); McCaskey, 133 F. Supp. 2d at 523; Tinsley v. Comm'r, No. 396-CV-1769-P, 1998 WL 59481, at *2 (N.D. Tex. Feb. 9, 1998) ("motions to dismiss for improper venue under 12(b)(3) are generally resolved through submission of affidavits and declarations and discovery materials").

In the FAC, plaintiffs assert that venue is proper pursuant to both the general venue statute, 28 U.S.C. § 1391, and the copyright venue statute, 28 U.S.C. § 1400.²² The copyright venue governs Burkitt's claims which arise under the Copyright Act. Burkitt's remaining non-copyright claims fall within the ambit of the general venue provisions.

22 Burkitt's original complaint only asserted venue pursuant to the general venue statute, 28 U.S.C. § 1391. In the FAC, plaintiffs assert venue pursuant to both subsections (a) and (b) of the general venue statute, i.e. venue where jurisdiction is founded only on diversity of citizenship (subsection (a)) and venue where jurisdiction is not founded solely on diversity of citizenship (subsection (b)). In their opposition memorandum, plaintiffs, for some unknown reason, contend that venue is proper under § 1391(a). Rec. Doc. No. 42. This Court's jurisdiction is plainly not "founded only on diversity of citizenship" because plaintiffs include federal claims which give rise to federal question jurisdiction. See 28 U.S.C. § 1338(a). Accordingly, the Court does not address plaintiffs' § 1391(a) argument.

A. Copyright Venue Statute

Venue for claims asserted pursuant to the Copyright Act are governed by a specialized venue statute, 28 U.S.C. § 1400(a), which provides:

Civil actions, suits, or proceedings arising under any Act of Congress relating to copyrights or exclusive rights in mask works or designs may be instituted in the district in which the defendant or his agent resides or may be found.

28 U.S.C. § 1400(a). The threshold inquiry under the copyright venue statute is whether Burkitt's claims "arise under any Act of Congress relating to copyrights." A claim arises under the Copyright Act if the complaint seeks a remedy expressly granted by the Act, if the complaint asserts a claim requiring construction of the Act, or if the complaint "presents an issue surrounding a 'distinctive policy of the Act requiring that federal principles control the disposition of the claim.'" Lombardi v. Suares, 923 F. Supp. 51, 53 (S.D.N.Y. 1996) (quoting T.B. Harms Co. v. Eliscu, 339 F.2d 823, 828 (2d Cir. 1964)); see also Briarpatch Ltd. v. Phoenix Pictures, Inc., 373 F.3d 296, 303-04 (2d Cir. 2004) (addressing copyright jurisdiction pursuant to 28 U.S.C. § 1338(a) and stating, "[f]or an action to arise under one of these acts [copyright act, patent act, or trademark act], the plaintiff's well-pleaded complaint must establish either that the act creates the cause of action or that the plaintiff's right to relief necessarily depends on resolution of a substantial question of law under the act.").

Burkitt asserts claims for declaratory relief pursuant to the Copyright Act and copyright infringement which clearly require construction of the Copyright Act, 17 U.S.C. §§ 101- 1101. Therefore, those claims arise under the Copyright Act and the copyright venue statute applies to those counts.

Pursuant to § 1400(a), venue is proper where a defendant resides or may be found. It is well established that an individual defendant "resides" for venue purposes in the district of his residence or legal domicile. See 17 MOORE'S FEDERAL PRACTICE 3d 110.03 (2002). Venue may also be proper where an individual defendant "may be found." § 1400(a). Courts have held that an individual defendant "may be found" in a district where he is subject to personal jurisdiction. See Gen. Design Sign Co. v. Am. Gen. Design, Inc., No.Civ. 02-CV-2298-H, 2003 WL 251931, at *2 (N.D. Tex. Jan. 31, 2003); Shropshire v. Fred Rappoport Co., 294 F. Supp. 2d 1085, 1094 (N.D. Cal. 2002) (noting that the venue inquiry is conducted as if the district were its own state); Linzer v. EMI Blackwood Music, Inc., 904 F. Supp. 207, 215 (S.D.N.Y. 1995).

It is undisputed that Scantlin does not "reside" in this district.²³ As stated previously, however, venue is also proper where an individual "may be found," that is where he is subject to personal jurisdiction. The copyright venue analysis, therefore, reduces to whether Scantlin has sufficient contacts with this district to satisfy the requirements for personal jurisdiction. In Louisiana, personal jurisdiction is determined according to a minimum contacts analysis. Petroleum Helicopters, Inc. v. Avco Corp., 513 So. 2d 1188, 1191 (La. 1987).²⁴

23 With respect to Puddle of Mudd, other than asserting that venue is or is not proper, the parties have not addressed the issue of venue for an unincorporated business association. In deciding venue for unincorporated business associations, courts have looked to where the individual members or partners reside as well as where the entity does business. See Penrod Drilling Co. v. Johnson, 414 F.2d 1217, 1220 (5th Cir. 1969). Courts have also treated partnerships and other business associations like corporations, looking to the residence of the entity itself. See Decker Coal Co. v. Commonwealth Edison Co., 805 F.2d 834, 841-42 (9th Cir. 1986) ("Residence for purpose of venue can be the residence of the partnership entity rather than exclusively that of its individual members.") (citing Denver Rio Grande W.R.R. v. Bhd. of R.R. Trainmen, 387 U.S. 556, 559-60, 87 S. Ct. 1746, 1748, 18 L. Ed. 2d 954 (1967) (the residence of an unincorporated association for purposes of 28 U.S.C. § 1391(b) is the residence of the association itself)).
Plaintiffs allege and the defendants do not dispute that Scantlin is a member of Puddle of Mudd. No party specifically addressed Puddle of Mudd's residence, the residence of any of its individual members other than Scantlin, or where it does business. Accordingly, without the benefit of the parties briefing the issue, the Court, based on Scantlin's membership in the band, treats Puddle of Mudd, the defendant business entity, and Scantlin, the individual defendant, the same.

24 Louisiana's personal jurisdiction statute states in pertinent part: "[A] court of this state may exercise personal jurisdiction over a nonresident on any basis consistent with the constitution of this state and of the Constitution of the United States." La.Rev.Stat. Ann. § 13:3201(B).
The due process clause of the United States Constitution permits the exercise of personal jurisdiction over a nonresident defendant when (1) that defendant has purposefully availed himself of the benefits and protections of the forum state by establishing "minimum contacts" with the district of the forum state; and (2) the exercise of jurisdiction over that defendant does not offend "traditional notions of fair play and substantial justice." Latshaw v. Johnston, 167 F.3d 208, 211 (5th Cir. 1999). In order to comport with due process, the defendant's conduct in connection with the forum state must be such that he "should reasonably anticipate being haled into court" in the forum state. Id.

Plaintiffs contend that through the Internet alone, Scantlin's activities establish sufficient contacts in the Eastern District of Louisiana to justify this Court's exercising personal jurisdiction.²⁵ Specifically, plaintiffs allege that either directly or indirectly through agents, Scantlin and Puddle of Mudd operate an interactive website.²⁶

25 Rec. Doc. No. 42.

26 Rec. Doc. No. 42, p. 7-8. Plaintiffs contend that Scantlin and the other members of Puddle of Mudd own and operate the website. Through the website, one may, among other things, purchase or download CDs and songs, email band members, and peruse biographies of the band's members.

As an initial matter, the Court notes that Scantlin and Puddle of Mudd did not object to personal jurisdiction. Furthermore, Scantlin and Puddle of Mudd have not provided the Court with any legal basis upon which to determine that exercising personal jurisdiction over them would not comport with due process.

The Court ordered defendants to file supplemental memoranda with respect to the issue of § 1400 venue. In their supplemental memorandum, defendants, Scantlin and Puddle of Mudd, seem to suggest that they cannot be "found" in this district because neither they nor the corporate Universal Defendants reside here.²⁷ Scantlin and Puddle of Mudd also contend that personal jurisdiction cannot be based solely on the fact that an album is marketed and sold in this forum.

27 Rec. Doc. No. 80. Again, the Universal Defendants' corporate residence is not at issue because they have waived the issue of venue. Rec. Doc. No. 79.

As a general principle, defendants may be correct that such limited contacts may be an insufficient basis for personal jurisdiction. See e.g., Selle v. Gibb, No. 78-C-3656, 1979 U.S. Dist. LEXIS 10623, at *6-*15 (N.D. Ill. Aug. 2, 1979) (finding the distribution of infringing goods alone into the forum insufficient for personal jurisdiction and § 1400(a) venue). At least one court in the Fifth Circuit has held that when a defendant submits to the jurisdiction of a court by not filing a motion to dismiss for lack of personal jurisdiction under 12(b)(2), venue under § 1400 is necessarily proper because it is well established that a defendant "may be found" in any district in which he is subject to personal jurisdiction. See General Design Sign Co., 2003 WL 251931, at *1-*2. Because defendants, Scantlin and Puddle of Mudd, did not object to personal jurisdiction, they are, therefore, subject to personal jurisdiction. Accordingly, the Court finds that Burkitt has satisfied his burden of establishing that pursuant to § 1400, venue is proper in this district with respect to his copyright claims.

B. General Venue Statute

With respect to Burkitt's numerous claims which do not arise under the Copyright Act, the general venue statute applies.²⁸ See 28 U.S.C. § 1391. Section 1391 bifurcates venue and creates two different rules. One rule is devoted to cases where the court's subject matter jurisdiction is based solely on diversity and the other rule is for non-diversity jurisdiction cases. Because federal claims are alleged,²⁹ § 1391(b) guides this Court's determination of whether venue is proper for Burkitt's non-copyright claims.

28 28 U.S.C. § 1391 provides:

(a) A civil action wherein jurisdiction is founded only on diversity of citizenship may, except as otherwise provided by law, be brought only in (1) a judicial district where any defendant resides, if all defendants reside in the same State, (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or (3) a judicial district in which any defendant is subject to personal jurisdiction at the time the action is commenced, if there is no district in which the action may otherwise be brought.

(b) A civil action wherein jurisdiction is not founded solely on diversity of citizenship may, except as otherwise provided by law, be brought only in (1) a judicial district where any defendant resides, if all defendants reside in the same State, (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or (3) a judicial district in which any defendant may be found, if there is no district in which the action may otherwise be brought.

29 Plaintiffs' state law claims do not from the basis for this Court's jurisdiction and, therefore, have no effect on which venue provision applies.

Section 1391(b)(2) provides for venue where a substantial part of the events or omissions giving rise to plaintiffs' claims occurred.³⁰ Defendants contend that venue is improper because a substantial part of the events or omissions giving rise to the claims did not occur in this district. Defendants further contend that plaintiffs' attempts to pepper their pleadings with "New Orleans events" is unavailing for the purpose of venue.³¹

30 Burkitt concedes that subsections (b)(1) and (b)(3) of § 1391 do not apply in this case. Venue cannot be based on § 1391(b)(1), which provides for venue in a judicial district where any defendant resides, if all defendants reside in the same state, because it is undisputed that Scantlin does not reside in this district, and the FAC contains allegations that the defendants reside in states other than Louisiana. Likewise, plaintiff recognizes that subsection (b) (3) is not applicable because there are other judicial districts in which this action could otherwise be brought, namely the Central District of California. Accordingly, Burkitt must rely on § 1391 (b) (2) to establish that venue is proper with respect to his claims which do not arise under the Copyright Act.

31 Rec. Doc. No. 30, p. 5.

Section 1391 does not require venue in the district which has the most substantial contacts with the dispute. See Greenblatt v. Gluck, 265 F. Supp. 2d 346, 352 (S.D.N.Y. 2003). Defendants maintain that either California or Missouri would be appropriate venues. However, for venue purposes, it is sufficient that a substantial part of the events occurred in this district, even if a greater part of the events occurred elsewhere. See id.

Burkitt specifically alleges the following activities occurred in Louisiana: 1) defendants formed the conspiracy to misappropriate plaintiffs' intellectual property rights and executed the recording agreement in New Orleans; 2) Puddle of Mudd played a concert in New Orleans in 2004 and, in 2002, it held a concert in New Orleans at the House of Blues; 3) Scantlin and Puddle of Mudd and/or Interscope Records have actively exploited Puddle of Mudd songs in this district through sales of albums, singles, etc., through the Puddle of Mudd website; and 4) Scantlin, Puddle of Mudd, and others have sold numerous records in Louisiana.

Burkitt's allegations which relate to the band's mere presence in New Orleans to perform concerts do not amount to substantial events giving rise to his non-copyright claims. However, Burkitt alleges that the Puddle of Mudd website is accessible in the Eastern District of New Orleans and that the "Puddle of Mudd" mark is used here. The defendants' Internet website where goods, which allegedly infringe plaintiffs' trademark, may be purchased supports venue in this district. See Int'l Truck and Engine Corp. v. Quintana, 259 F. Supp. 2d 553, 558 (N.D. Tex. 2003) (finding venue proper in a trademark action when defendant's website which allegedly infringed plaintiffs' trademark was accessible in the district). Furthermore, Burkitt alleges that the genesis of the conspiracy to exploit his intellectual property rights occurred in New Orleans, which is the underlying basis for Burkitt's state law claims, and that the recording contract between Scantlin and Flawless Records was executed in New Orleans.³²

32 Rec. Doc. No. 27, ¶ 48. Specifically, plaintiffs allege that, "Upon information and belief, Defendant Geffen Records is a leading actor in the conspiracy to lure Scantlin away from his partners, Burkitt and Sammon, and to convert the partnership opportunities to his own. These actions took place in New Orleans, Louisiana, at the principal business establishment of Geffen Records at the time, 601 Poydras Street, New Orleans Louisiana, between December 1999 and June of 2000. Id.

While the Court takes plaintiffs' undisputed factual allegations as true, defendants maintain that the recording contract which also gives rise to many of Burkitt's state law claims reflects that it was entered into in California.³³ Scantlin further declares in a signed declaration that the portions of the recording contract provided to the court are true and accurate.³⁴ Notwithstanding that the contractual provision provides that the contract was not entered into in this district, it is entirely conceivable that the parties to the contract had contract discussions in New Orleans, as plaintiff alleges. Giving plaintiff the benefit of the doubt, these events support a conclusion that a requisite number of events took place in this district, making this district a proper venue.³⁵

33 Rec. Doc. No. 30, exhibit 1-A, attachment to declaration of Wes Scantlin.

34 Rec. Doc. No. 30, exhibit 1.

35 Even assuming that a more substantial part of the events giving rise to plaintiffs' claims occurred elsewhere, rather than bifurcating Burkitt's claims and dismissing or transferring those claims which do not arise under the Copyright Act, the Court may find venue proper pursuant to the doctrine of pendent venue. As explained by the United States District Court for the Eastern District of Wisconsin:

a claim that is not properly venued standing alone can still be heard by a court as long as another properly venued claim arising out of a common nucleus of operative facts is also brought at the same time in the same district. The doctrine developed as an analogy to the concept of supplemental jurisdiction whereby a state law claim that could not otherwise be heard in a federal court would be allowed if attached to a factually similar federal claim.

Pacer Global Logistics, Inc. v. Nat'l Passenger R.R. Corp., 272 F. Supp. 2d 784, 789 (E.D. Wis. 2003). Whether to apply pendent venue is a discretionary decision, based on considerations of judicial economy, convenience to the parties and the court, avoidance of piecemeal litigation, and fairness to the litigants. Rodriguez v. Chandler, 641 F. Supp. 1292, 1302 (S.D.N.Y. 1986) (noting that pendent venue is often used in cases in which venue over one claim is already established under a specialized venue statute).
This Court has found venue proper pursuant to the copyright venue statute for some of Burkitt's claims. Burkitt's non-copyright claims are entirely premised on the same underlying factual allegations. A dismissal or transfer of some of Burkitt's claims, while deciding Burkitt's claims which arise under the Copyright Act and Burkitt's identical non-copyright claims made against the other defendants who have waived the issue of venue, would be inefficient and a waste of judicial resources. See Rodriguez, 641 F. Supp. at 1302. Accordingly, even assuming that venue is improper with respect to some of Burkitt's non-copyright claims against Scantlin and Puddle of Mudd, the Court finds that exercising pendent venue would be appropriate for Burkitt's non-copyright claims which arise out of a common nucleus of operative fact against Scantlin and Puddle of Mudd.

C. Transfer

Scantlin and Puddle of Mudd further contend that the Court should transfer this case to the United States District Court for the Central District of California pursuant to 28 U.S.C. § 1406 (a).³⁶ Section 1406(a) provides that a district court may transfer a case when venue is improper if transfer is "in the interest of justice." Because the Court has determined that venue is proper in this district, defendants' request for a transfer is denied.

36 Defendants did not make a request for transfer pursuant to 28 U.S.C. § 1404.

III. Scantlin Puddle of Mudd's Motion to Dismiss Sammon's Claims

Scantlin and Puddle of Mudd contend that Sammon fails to state a claim upon which relief can be granted because in June, 2001, Sammon released his claims in a signed settlement and release agreement.³⁷ Scantlin and Puddle of Mudd produced the agreement as part of their motion to dismiss.³⁸ Sammon admits in the FAC that he entered into the agreement to release all claims with respect to Puddle of Mudd.³⁹ However, Sammon alleges that he was fraudulently induced into entering that agreement.

37 Rec. Doc. No. 31.

38 Rec. Doc. No. 31. The Court denied defendants' request to take judicial notice of the agreement; however, as explained below, the Court will consider the agreement as proper summary judgment evidence.

39 Rec. Doc. No. 27, ¶ 82. In Paragraph 82 of the FAC, plaintiffs allege that: "During June 2001 Sammon entered into a settlement agreement with [Puddle of Mudd] ostensibly relinquishing his rights to the [original Puddle of Mudd] partnership and its property, based on intentional misrepresentations of fact perpetrated by [Puddle of Mudd] and its agents, and said agreement is null and void due to fraud." Id.

Following the general rule that a district court must not go beyond the pleadings with respect to Rule 12(b)(6) motions, the Court gave the parties notice and converted defendants' Rule 12(b)(6) motion into a Rule 56 motion for summary judgment.⁴⁰ See Fed.R.Civ.P. 12(b) (stating "[i]f, on [a 12(b)(6) motion], matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56. . . ."); Stewart v. Murphy, 174 F.3d 530, 532-33 (5th Cir. 1999).

40 Rec. Doc. No. 71. The parties were granted five days to file supplemental memoranda and any additional evidence. Id.
Defendant, WB Music Corporation, joined Scantlin and Puddle of Mudd in their supplemental memorandum. See Rec. Doc. No. 83. On November 30, 2004, however, the Court denied WB Music Corporation's motion to join the other defendants' motions. Rec. Doc. No. 59. In view of this order, the Court does not consider WB Music Corporation's attempt to now join in defendants' supplemental memorandum in support of summary judgment.

Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). Once the moving party carries its burden of proving that there is no material factual dispute, the burden shifts to the nonmovant "to show that summary judgment should not lie." Hopper v. Frank, 16 F.3d 92, 96 (5th Cir. 1994). While the court must consider the evidence with all reasonable inferences in the light most favorable to the nonmovant, the nonmoving party must come forward with specific facts showing that there is a genuine issue for trial. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986); Webb v. Cardiothoracic Surgery Assocs. of N. Tex., 139 F. 3d 532, 536 (5th Cir. 1998). This requires the nonmoving party to do "more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec., 475 U.S. at 586, 106 S. Ct. at 1356. The nonmoving party must "go beyond the pleadings and by her own affidavits, or by the 'depositions, answers to interrogatories, and admissions on file,' designate 'specific facts showing that there is a genuine issue for trial.'" Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986); Auguster v. Vermilion Parish Sch. Bd., 249 F.3d 400, 402 (5th Cir. 2001). This burden is not satisfied by creating merely some metaphysical doubt as to the material facts, by conclusory allegations, unsubstantiated assertions or by only a scintilla of evidence. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).

Moreover, this Court must enter summary judgment for a party when the nonmoving party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp., 477 U.S. at 322, 106 S. Ct. at 2552. "In such a situation, there can be 'no genuine issue as to any material fact,' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex Corp., 477 U.S. at 322-23, 106 S. Ct. at 2552; Munoz v. Orr, 200 F.3d 291, 307 (5th Cir. 2000) ("A complete failure of proof as to one element requires summary judgment against the entirety of the claim").

The thrust of Scantlin and Puddle of Mudd's motion is that if the settlement and release agreement is enforceable, then Sammon has no claims against them.⁴¹ The agreement establishes that Sammon, for consideration, released "any interest in the band name, the band's recordings and publishing agreements, songs written by past and present members of Puddle of Mudd, and the recordings embodying the performances of Puddle of Mudd."⁴²

41 Rec. Doc. No. 31. Specifically, the settlement agreement establishes that: 1) Sammon represented and warranted that he did not write the Puddle of Mudd songs; 2) Sammon acknowledged that he had no interest in the Puddle of Mudd marks; 3) Sammon agreed that he had no interest in the band name or the band itself; 4) Sammon released all claims and/or obligations relating to Puddle of Mudd; 5) Sammon waived all rights and benefits pertaining to Puddle of Mudd by a full and final accord and satisfaction; 6) Sammon represented that he relied on no promises or representations in signing the agreement; 7) Sammon acknowledged that the consideration paid represented full payment to which he was entitled; 8) Sammon represented that he read and understood the agreement and that he was fully informed of its contents. Rec. Doc. No. 32, exhibit 7.

42 Rec. Doc. No. 83, exhibit A, supplemental declaration of Ian Montone. Rec. Doc. No. 31, exhibit 1, declaration of Ian Montone. Sammon received $30,000.00 as part of the agreement. Id.

In the FAC, Sammon alleges that he was fraudulently induced into entering the agreement.⁴³ The settlement agreement provides that the agreement itself shall be governed by and construed under California law.⁴⁴ Under California law, fraud in the inducement requires: 1) a misrepresentation; 2) knowledge of the misrepresentation's falsity; 3) intent to defraud; 4) justifiable reliance; and 5) resulting damage. See Hunter v. Up-Right, Inc., 26 Cal. Rptr. 2d 8, 13 (Cal. 1993); Banco Do Brasil, S.A. v. Latian, Inc., 285 Cal. Rptr. 870, 896 (Cal.App. 1991).⁴⁵

43 Rec. Doc. No. 27, ¶ 82.

44 Rec. Doc. No. 32, exhibit 7, p. 6.

45 The Court notes that the general elements of fraudulent inducement under Louisiana law are the same. See Kendall Co. v. S. Med. Supplies, Inc., 913 F. Supp. 483, 487 (E.D. La. 1996).

In his opposition memorandum, Sammon suggests that during negotiations, Puddle of Mudd, through its agents and/or representatives, falsely advised him that a former member of the band would "testify against him" with respect to his interest in ownership of Puddle of Mudd's intellectual property assets.⁴⁶ Specifically, Sammon maintains that once he learned that Scantlin was continuing to perform using the "Puddle of Mudd" name, allegedly using compositions that violated his individual and partnership rights in Puddle of Mudd property, he engaged an attorney.⁴⁷

46 Rec. Doc. No. 40, exhibit 1, affidavit of Sammon.

47 Rec. Doc. No. 47, exhibit A, substitute affidavit of Sammon.

In December, 2000, Sammon, through his attorney, sent a cease-and-desist letter to counsel for Puddle of Mudd, which advised them of Sammon's alleged copyright and trademark interests.⁴⁸ Sammon then entered into negotiations, represented by counsel, in an effort to obtain compensation for the use of his rights. On January 19, 2001, counsel for the band wrote a letter to Sammon's attorney, which stated, inter alia, "We have been advised that, contrary to the assertions in your letters, Mr. Sammon has no claim to any copyright interest in any of the musical compositions written by our clients with the minor exception of [two musical compositions]. . . ."⁴⁹ The letter concluded: "Please be advised that we have been informed by other ex-members of the Band that the foregoing is true and accurate and that they would be willing to attest to and verify such facts."⁵⁰

48 Rec. Doc. No. 83, exhibit A-A.

49 Rec. Doc. No. 40, exhibit 1-A.

50 Id.

Sammon asserts that in a telephone call in May, 2001, representatives for Puddle of Mudd repeated the substance of the allegations made in the January 19th letter that ex-members of the band would verify that he had no interest in the material he was claiming to have an interest in.⁵¹ Sammon also submits the signed affidavit of Burkitt which states that Burkitt never advised Puddle of Mudd or its agents or representatives that Sammon did not co-author the material at issue or that he would attest to such facts.⁵²

51 Rec. Doc. No. 84, exhibit A, third affidavit of Sammon.

52 Rec. Doc. No. 84, exhibit C, affidavit of Burkitt.

After more than five months of negotiations while represented by counsel, Sammon was allegedly unable to contact Burkitt to determine the veracity of any representation made by any representative or lawyer for the band.⁵³ According to Sammon, he only agreed to the terms of the Settlement and Release Agreement, including the $30,000.00 payment, because of the representation that former members of the band would attest to the fact that he did not have any rights to the band's musical compositions, lyrics, music, or the name.⁵⁴

53 Rec. Doc. No. 83, exhibit A. Montone declares that in 2001, Carolyn Herman, Esq., represented Sammon during the negotiation of the settlement agreement. Id.

54 Jimmy Allen, a former member of Puddle of Mudd until 1994, has signed a written declaration to the effect that Sammon as well as Burkitt did not co-author certain compositions. Rec. Doc. No. 83, exhibit B. Sammon suggests that because of Allen's departure from the band in 1994, only Burkitt could "attest and verify" that Sammon wrote certain material.

Even assuming a material misrepresentation and intent to defraud by a Puddle of Mudd representative, Sammon must prove that he justifiably relied on the misrepresentation. Whether reliance is justifiable is a question of fact. See Guido v. Koopman, 2 Cal. Rptr. 2d 437, 440 (Cal.App. 1991). The question may be decided as a matter of law if reasonable minds can come to only one conclusion based on the facts. See id.

The written terms of the settlement agreement undercut Sammon's assertion of justified reliance. The Agreement, which contains a merger or integration clause and a disclaimer of reliance clause, states:

Both parties hereto mutually acknowledge to each other that neither of them, nor any agent or attorney of either of them, has made any promise, representation or warranty whatsoever, express, implied or statutory, not contained herein concerning the subject matter hereof to induce the other to execute this agreement, and both parties acknowledge that neither of them has executed this agreement in reliance on any such promise, representation or warranty not contained herein. . . .⁵⁵

55 Rec. Doc. No. 83, exhibit C.

Nothing surrounding the circumstances of Sammon's several months long negotiation or his signing the settlement and release agreement is evidence that Sammon's reliance on the representations of Puddle of Mudd's representative was justified.⁵⁶ In addition to signing the agreement which contains a specific disclaimer of reliance, Sammon was represented by counsel throughout the negotiations process. Furthermore, in light of the fact that Sammon's attorney negotiated the terms of the contract over the course of several months, Sammon's alleged inability to contact Burkitt, his co-plaintiff, during negotiations is unavailing.⁵⁷ Therefore, the Court finds that Sammon has failed to produce any evidence to establish justified reliance as a matter of law and that Sammon is bound by the terms of the settlement and release agreement in which he released the same claims now asserted in the FAC against Scantlin and Puddle of Mudd. Accordingly, defendants, Scantlin and Puddle of Mudd, are entitled to summary judgment with respect to the claims of Sammon.⁵⁸

56 The Court recognizes that California courts have rejected a per se rule that a disclaimer-of-reliance provision in a contract precludes a party from proving reasonable reliance. See Wang v. Massey Chevrolet, 118 Cal. Rptr. 2d 770, 781 (Cal.App. 2002). However, Wang does not stand for the proposition that a disclaimer-of-reliance provision cannot be considered when determining the reasonableness of a party's reliance.

57 The parties contest whether parol evidence is admissible to prove fraudulent inducement. Even with the benefit of parol evidence, Sammon cannot establish fraudulent inducement as a matter of law.

58 In his supplemental memorandum in opposition to summary judgment, Sammon suggests that the settlement agreement would not preclude claims against all defendants, including Greg Upchurch, Jimmy Allen, Universal Music and Video Distribution Corp., and the Puddle of Mudd partnership. Upchurch and Allen are not parties to this lawsuit, and Universal Music and Video Distribution Corp. has not moved for summary judgment on the basis of the settlement and release agreement.
The settlement and release agreement was executed by Sammon and the individual members of Puddle of Mudd who comprise the defendant-business entity Puddle of Mudd. The agreement itself provides:

Whereas, certain disputes have arisen between the parties hereto with respect to the Group, the Group Name, the Compositions, the Masters, the Partnership and other activities concerning the Group (as such terms are hereinafter defined);

Whereas, the Band Members [Wesley Scantlin, Doug Ardito and Paul Phillips] and Sammon have mutually agreed that Sammon has no interest in and to the performing group p/k/a 'Puddle of Mudd' ('Group') nor the group name 'Puddle of Mudd' and any other name used by the Group ('Group Name'), and shall acknowledge to the Band Members that he has no interest in and to the Group, the Group Name, the partnership (hereinafter the 'Partnership'), if any, the Recording Agreement and the Publishing Agreement (as such terms are hereinafter defined) in exchange for the consideration hereinafter set forth;

Whereas, the Band Members and Sammon mutually desire to enter into this agreement pursuant to which the Band Members and Sammon finally settle all of their claims and disputes with respect to the Group Name, the Recording Agreement, the Publishing Agreement, the Compositions, and the Masters (as such terms are hereinafter defined) and otherwise in connection with all other activities concerning the Partnership, if any, the Recording Agreement, the Publishing Agreement, the Group and the Group Name . . .

Rec. Doc. No. 83, exhibit C. Plaintiffs have failed to provide the Court with legal authority supporting the contention that the agreement is not enforceable against Puddle of Mudd. Accordingly, the Court finds that the agreement precludes Sammon's claims against Puddle of Mudd.

IV. The Universal Defendants' and Scantlin and Puddle of Mudd's Rule 12(b)(6) Motions to Dismiss

On April 14, 2004, the Universal Defendants moved to dismiss (1) all federal claims in Burkitt's complaint;⁵⁹ (2) Burkitt's claim for accounting;⁶⁰ and (3) Burkitt's pendent state law claims.⁶¹ On May 4, 2004, the Universal Defendants subsequently moved to dismiss Burkitt's and Sammon's FAC, for the same reasons set forth in their original 12(b)(6) motion to dismiss.⁶² Scantlin and Puddle of Mudd assert many of the same arguments made by the Universal Defendants in their motion to dismiss Burkitt's claims.⁶³

59 Plaintiffs' federal claims include copyright infringement (count II), trademark infringement (count III), and misattribution under the Lanham Act (count X).

60 Rec. Doc. No. 27, ¶¶ 164-69 (count XII).

61 Burkitt's state law claims which are plead against the Universal Defendants include conversion (count VI), misappropriation (count VII), unjust enrichment (count VII), unfair trade practices (count IX), intentional interference with business relations (count XII), abuse of right (count XIII), and legal fault (count XIV).

62 Rec. Doc. No. 29. The Court dismissed the Universal Defendants' original 12(b)(6) motion as moot in light of their second motion to dismiss which is based on the amended complaint and preserved all arguments made in their original motion. Rec. Doc. No. 75.

63 Rec. Doc. No. 30. Scantlin and Puddle of Mudd's 12(b)(6) motion only addresses Burkitt's claims. Nevertheless, the Court will continue to refer to the claims of "plaintiffs" throughout section IV, even though, with respect to Scantlin and Puddle of Mudd, Sammon's claims were released.

In order to determine whether a motion to dismiss has merit, Fifth Circuit law instructs that "the standard to be applied to a motion to dismiss under Federal Rule 12(b)(6) is a familiar one." Jefferson v. Lead Indus. Ass'n Inc., 106 F.3d 1245, 1250 (5th Cir. 1997). The district court must take the factual allegations of the complaint as true and resolve any ambiguities or doubts regarding the sufficiency of the claim in favor of the plaintiff. Kane Enters. v. MacGregor, 322 F.3d 371, 374 (5th Cir. 2003); Fernandez-Montes v. Allied Pilots Ass'n, 987 F.2d 278, 284 (5th Cir. 1993). The complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff cannot prove any set of facts in support of her claim that would entitle her to relief. Leffall v. Dallas Indep. Sch. Dist., 28 F.3d 521, 524 (5th Cir. 1994); Fernandez-Montes, 987 F.2d at 284, 285. However, conclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss. Kane Enters., 322 F.3d at 374; Fernandez-Montes, 987 F.2d at 284; Tuchman v. DSC Communications Corp., 14 F.3d 1061, 1067 (5th Cir. 1994).

A. Plaintiffs' Federal Claims

Plaintiffs allege federal claims for copyright infringement, trademark infringement, "reverse palming off" pursuant to the Lanham Act, and for declaratory relief pursuant to the Copyright Act.⁶⁴

64 Rec. Doc. No. 27. The Universal Defendants assert that plaintiffs' claim for declaratory relief can only be addressed by Scantlin because the Universal Defendants do not claim ownership. Rec. Doc. No. 29.

1. Copyright Infringement Claims

With respect to plaintiffs' copyright infringement claims, plaintiffs allege that the defendants "used, sold, released, re-released, exhibited, copied, duplicated, and/or licensed for commercial profit, [musical compositions and sound recordings], without [plaintiffs'] authority and without license from plaintiffs."⁶⁵ Neither plaintiff alleges that he individually authored any Puddle of Mudd song. In fact, plaintiffs insist that they jointly authored the musical compositions at issue with Scantlin.⁶⁶

65 Rec. Doc. No. 27, ¶ 105.

66 Rec. Doc. No. ¶ 24. 17 U.S.C. § 101 defines a joint work as "a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole."

Based on plaintiffs' allegations, Scantlin is not liable to plaintiffs for copyright infringement. It is well-settled that a co-owner cannot be liable to another co-owner for infringement of copyright. Quintanilla v. Tex. Television Inc., 139 F.3d 494, 498 (5th Cir. 1998); Picture Music, Inc. v. Bourne, Inc., 314 F. Supp. 640, 646 (S.D.N.Y. 1970) ("It is clearly established that where a truly 'joint work', is created, each co-owner is akin to a tenant in common. Accordingly, a joint author cannot be held liable for copyright infringement to another joint owner."). Because plaintiffs allege that Scantlin is a co-owner, Scantlin cannot infringe plaintiffs' alleged copyright.⁶⁷

67 Scantlin also contends that Burkitt's claim for statutory damages and attorney's fees should be dismissed. Because the Court finds that Burkitt's claims for copyright infringement fail, it need not address the issue of damages and attorney's fees.

Similarly, plaintiffs' claims for copyright infringement against the Universal Defendants also fail because as alleged in the FAC, Scantlin licensed the Universal Defendants' use of the material at issue. See Batiste v. Island Records, 179 F.3d 217, 224 (5th Cir. 1999) (noting that the validity of plaintiff's allegations that a co-author did not have authority to license was immaterial because an authorization by one co-owner is a defense to a claim of copyright infringement) (citing 1 NIMMER ON COPYRIGHT § 6.10). Copyright infringement only occurs when a defendant wrongfully exercises one of the plaintiff's exclusive rights to exploit the work. Sony Corp. of Am. v. Univ. City Studios, Inc., 464 U.S. 417, 433, 104 S. Ct. 774, 784, 78 L. Ed. 2d 574 (1984). A license granted by a co-owner of a copyright is a defense to a claim for copyright infringement brought by another co-owner. See Quintanilla, 139 F.3d at 498 (based on the principle that one joint owner cannot be liable to another joint owner); Effects Assocs. Inc. v. Cohen, 908 F.2d 555, 558-59 (9th Cir. 1990); McKay v. Columbia Broad. Sys., Inc., 324 F.2d 762, 763 (2d Cir. 1963). The Universal Defendants have not wrongfully exercised plaintiffs' rights because a co-owner may license the right to use to others. See 1 NIMMER ON COPYRIGHT § 6.12[C] at 6-39 ("a grant executed by less than all of the joint owners of a copyright is necessarily non-exclusive, it follows that any such grant constitutes a non-exclusive license"). Accordingly, as a matter of law, just as Scantlin cannot be liable for copyright infringement, the Universal Defendants are not liable to plaintiffs for copyright infringement.⁶⁸

68 In support of their copyright infringement claims, plaintiffs, citing no caselaw, argue that the license granted to the Universal Defendants amounts to a "destruction" of a work. Destruction of work, as explained by Nimmer, occurs:

only in those limited circumstances where by its nature, the work can be exploited in one and only one medium and that medium customarily does not use competitive versions of the same work.

. . .

Generally if a work has been licensed and exploited in a given medium, this hardly destroys the copyright in that it may still have value in other media, and indeed may still have value for competitive uses in the same medium. For instance, in the phonograph records business, it is customary to acquire nonexclusive rights while competitive companies produce records based upon the same work. Therefore, generally but not invariably, it should be held that a nonexclusive license and exploitation pursuant thereto does not destroy the licensed work.

1 NIMMER ON COPYRIGHTS § 6.10[A], at 6-32. The Court finds that the destruction doctrine does not apply in this case.
In addition, plaintiffs, relying on Nimmer, also assert that the Universal Defendants' license is not effective in foreign jurisdictions and, therefore, does not preclude liability for overseas sales. Plaintiffs' reliance on the foreign jurisdiction exception is completely misplaced and provides no support for their copyright infringement claims.

2. Trademark Infringement

Plaintiffs also allege that they co-own the trademark rights at issue in this case with Scantlin. In their opposition, plaintiffs withdraw their trademark infringement claims brought pursuant to 15 U.S.C. § 1114 in view of the fact that they have not registered the "Puddle of Mudd" mark.⁶⁹ Accordingly, plaintiffs' federal trademark infringement claims brought under § 1114 are dismissed.

69 See Rec. Doc. No. 41. Trademark infringement pursuant to 15 U.S.C. § 1114 requires registration. § 1114(1) states:

Any person who shall, without the consent of the registrant —

(a) use in commerce any reproduction, counterfeit, copy, or colorable imitation of a registered mark in connection with the sale, offering for sale, distribution, or advertising of any goods or services on or in connection with which such use is likely to cause confusion, or to cause mistake, or to deceive; or

(b) reproduce, counterfeit, copy, or colorably imitate a registered mark and apply such reproduction, counterfeit, copy, or colorable imitation to labels, signs, prints, packages, wrappers, receptacles or advertisements intended to be used in commerce upon or in connection with the sale, offering for sale, distribution, or advertising of goods or services on or in connection with which such use is likely to cause confusion, or to cause mistake, or to deceive, shall be liable in a civil action by the registrant for the remedies hereinafter provided.

However, plaintiffs contend that they have a common law trademark claim for their unregistered mark pursuant to 15 U.S.C. § 1125(a). See Wal-Mart Stores, Inc. v. Samara Bros., Inc., 529 U.S. 205, 209, 120 S. Ct. 1339, 1342, 146 L. Ed. 2d 182 (2000) (recognizing protection of unregistered mark under § 43(a) of the Lanham Act, 15 U.S.C. § 1125(a)); PHC, Inc. v. Pioneer Healthcare, Inc., 75 F.3d 75, 78-79 (1st Cir. 1996); Kingsmen v. K-tel Int'l Ltd., 557 F. Supp. 178, 181 (S.D.N.Y. 1983) (recognizing Lanham Act protection of unregistered popular musical recording group name).

Scantlin and Puddle of Mudd cite Marcy Playground, Inc. v. Capitol Records, Inc., 6 F. Supp. 2d 277 (S.D.N.Y. 1998), to suggest that Burkitt's unregistered trademark claims fail as a matter of law. In Marcy Playground, the court did not decide that unregistered marks are unprotected. Instead, plaintiffs' motion to enjoin the distribution of an album because the plaintiff-producers were not credited with their alleged contributions in the liner notes was denied. Id. at 277-78. The Marcy Playground court found that the plaintiffs had not met their burden of establishing irreparable injury for the purpose of an injunction based on the omission of their names from the production credits inside the album cover. Id. at 282.

The Court finds Marcy Playground inapposite. In this case, plaintiffs have not moved for an injunction and Scantlin and Puddle of Mudd have not provided the Court with any other basis to dismiss Burkitt's § 1125(a) trademark infringement action. Accordingly, Burkitt's claim for trademark infringement against Scantlin and Puddle of Mudd survives.

With respect to the Universal Defendants, they raise a defense to plaintiffs' trademark claims, arguing that they were granted a license by Scantlin to use the mark. Plaintiffs recognize that Scantlin licensed the Universal Defendants' use of the "Puddle of Mudd" mark.⁷⁰

70 Plaintiffs contend that the Universal Defendants' license is void because Scantlin did not have authority to license their use of the material. The Court finds this argument unpersuasive. Plaintiffs allege that Scantlin is a partner in the band and partners may bind the partnership as a matter of law. See La. Civ. Code art. 2814. Furthermore, plaintiffs have not provided the Court with any authority to suggest that the Universal Defendants' license was invalid. See discussion infra Part IV, B.

It is clearly established that a licensee has an affirmative defense to a claim of trademark infringement. See McCoy v. Mitsuboshi Cutlery, Inc., 67 F.3d 917, 920 (Fed. Cir. 1995) (applying Fifth Circuit law); Moore Bus. Forms, Inc. v. Ryu, 960 F.2d 486, 489 (5th Cir. 1992). Accordingly, regardless of whether plaintiffs' trademark infringement claim is based on a registered or an unregistered mark, the Universal Defendants are not liable for trademark infringement because the license allegedly granted by Scantlin precludes any claim against the Universal Defendants for trademark infringement.

3. "Reverse Palming Off" or Misattribution

Plaintiffs allege claims against all defendants pursuant to § 43(a) of the Lanham Act.⁷¹ Specifically, plaintiffs allege "reverse palming off" based on the defendants' misattribution of the co-authors "on sheet music, guitar tabs, lyric sheets, the album Come Clean and the singles."⁷² Plaintiffs claim that the defendants have "falsely designated the origin of their goods and services in violation of the Lanham Act § 43(a)" by failing to list them as co-authors in the songwriting credits on the album Come Clean. ⁷³

71 Section 43(a) of the Lanham Act provides:

(1) Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation or fact, which —

(A) is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person, or

(B) in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person's goods, services, or commercial activities, shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act.

15 U.S.C. § 1125(a)(1).

72 Rec. Doc. No. 27, ¶¶ 151-157. "Reverse palming off" or "reverse passing off" occurs where a producer misrepresents someone else's goods or services as his own. See Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23, 27 n. 1, 123 S. Ct. 2041, 2045 n. 1, 156 L. Ed. 2d 18 (2003).

73 Rec. Doc. No. 27, ¶ 152.

The defendants, contending that plaintiffs' reverse palming off claims fail, direct the Court to Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23, 123 S. Ct. 2041, 156 L. Ed. 2d 18 (2003). In Dastar, the Supreme Court foreclosed the use of the Lanham Act as a basis to recover for variations on copyright infringement claims. See 539 U.S. at 32-33, 123 S. Ct. at 2047-48 ("The words of the Lanham Act should not be stretched to cover matters that are typically of no consequence to purchasers.").

The Dastar Court held that the phrase "origin of goods" as used in § 43(a) of the Lanham Act applies only "to the producer of the tangible goods that are offered for sale, and not to the author of any idea, concept, or communication embodied in those goods." Id. at 37, 123 S. Ct. at 2050. While the facts of Dastar were limited to an uncopyrighted work, the Dastar Court's reasoning and holding apply beyond the facts of the case. See e.g., Williams v. UMG Recordings, Inc., 281 F. Supp. 2d 1177, 1184 (C.D. Cal. 2003) (" Dastar makes clear that a claim that a defendant's failure to credit the plaintiff on the defendant's goods is actionable only where the defendant literally repackages the plaintiff's goods and sells them as the defendant's own — not where, as here, Defendants are accused only of failing to identify someone who contributed not goods, but ideas or communications . . . to Defendants' product."); Keane v. Fox Television Stations, 297 F. Supp. 2d 921, 935 (S.D. Tex. 2004) (discussing Dastar). Plaintiffs' misattribution claims seek to extend the trademark protections of the Lanham Act to the creative works at issue in this case. Such an extension of the Lanham Act is precisely what the Dastar Court rejected. The Court plainly stated that protection for original and creative communicative products is available through copyright law, not the Lanham Act. Dastar, 539 U.S. at 32, 123 S. Ct. at 2047. Accordingly, Dastar precludes plaintiffs' "reverse palming off" claims.

B. Plaintiffs' Claims for an Accounting

Plaintiffs assert that all of the defendants owe them a portion of the profits derived from the commercial exploitation of "Puddle of Mudd" property that plaintiffs allegedly co-own.⁷⁴ Plaintiffs' claims for an accounting stem from their copyright claims which are premised on their alleged co-ownership. See Worth v. Universal Pictures, Inc., 5 F. Supp. 2d 816, 823 (C.D. Cal. 1997) (stating that a claim for an accounting is essentially a remedy for a plaintiff's copyright claims); see also Goodman v. Lee, Civ.A. No. 85-2966, 1994 WL 710738, at *3 (E.D. La. Dec. 20, 1994) ("The duty to account does not derive from the copyright law's proscription of infringement, but comes from equitable doctrines relating to unjust enrichment and general principles of law governing the rights of co-owners.") (internal quotations and citations omitted); cf. Gaiman v. McFarlane, 360 F.3d 644, 652 (7th Cir. 2004) ("When co-ownership is conceded and the only issue therefore is the contractual, or in the absence of contract the equitable, division of the profits from the copyrighted work, there is no issue of copyright law and the suit for an accounting of profits therefore arises under state rather than federal law").

74 Rec. Doc. No. 27, ¶¶ 164-169.

Fifth Circuit law makes clear that the duty to account to other co-owners arises from "general principles of law governing the rights of co-owners." Quintanilla v. Tex. Television Inc., 139 F.3d 494, 498 (5th Cir. 1998) (quoting Goodman v. Lee, 78 F.3d 1007 (5th Cir. 1996)). A right of accounting may only be enforced against a joint owner. 1 NIMMER ON COPYRIGHT § 6.12[B]. A joint owner has no right to an accounting against a licensee. Id.

Scantlin recognizes that if Burkitt has any claim against him based on copyright, it is a claim for an accounting.⁷⁵ On the other hand, the Universal Defendants contend that plaintiffs have no right of action for an accounting against them because they are licensees and not co-owners. Plaintiffs acknowledge the general rule that licensees are not subject to accounting claims by co-owners. However, plaintiffs maintain that the Universal Defendants were granted an exclusive license which is a transfer of ownership, thereby subjecting them to plaintiffs' accounting claims.⁷⁶ Plaintiffs' argument is without merit.

75 Rec. Doc. No. 30, p. 10. Burkitt's claim for an accounting is premised on his status as a co-owner. While this is alleged, it has not been proved and it is contested. Before Burkitt can assert his rights, if any, to compensation, he must establish that he is a joint author. Such a determination is not before the Court at this early stage in the proceedings.

76 17 U.S.C. § 101 of the Copyright Act provides in pertinent part that:

[a] 'transfer of copyright ownership' is an assignment, mortgage, exclusive license, or any other conveyance, alienation, or hypothecation of a copyright or of any of the exclusive rights comprised in a copyright, whether or not it is limited in time or place of effect, but not including a nonexclusive license.

Id. (emphasis added).

An exclusive license can only be accomplished by agreement of all co-owners. See Denker v. Twentieth Century-Fox Film Corp., 179 N.E.2d 336, 337 (N.Y. 1961) ("it is clear that exclusive rights to a copyright may be effected only by a grant in which all of the co-owners join"). Because plaintiffs maintain that they did not consent to the license granted to the Universal Defendants, any license granted by Scantlin merely granted a license of the rights of the copyright owner,⁷⁷ i.e. a non-exclusive license, rather than a transfer of ownership which is a transfer of all of the rights, i.e. an exclusive license. See 1 NIMMER ON COPYRIGHT § 6.12[C] at 6-38, -39 (stating "[a] licensee has no duty to account to the joint owners of a work other than to the particular joint owner who is his licensor, and then only to the extent that the terms of the license require such an accounting"). While a transfer of rights and/or ownership could not be effected by Scantlin alone, the absence of plaintiffs' permission does not nullify the licensing agreement itself. See Bodenstab v. J.R. Blank Assocs., Inc., Nos. 88-C-6125, 88-C-6135, 1989 WL 84617, at *2 (N.D. Ill. July 17, 1989) (citing 1 NIMMER ON COPYRIGHT § 6-12[C] at 6-32 ("a grant executed by less than all of the joint owners of a copyright is necessarily non-exclusive")).

77 Subject to certain exceptions, section 106 of the copyright act provides that the owner of a copyright has following exclusive rights:
(1) to reproduce the copyrighted work in copies or phonorecords;
(2) to prepare derivative works based upon the copyrighted work;
(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and
(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.

Taking the factual allegation of plaintiffs' amended complaint as true, Scantlin, without plaintiffs' consent or authorization, only granted a non-exclusive license to the Universal Defendants, thereby making the Universal Defendants licensees. As plaintiffs concede, a licensee is free from liability to a co-owner for an accounting. Accordingly, plaintiffs' claims for an accounting against the Universal Defendants are dismissed.

C. Plaintiffs' Pendent State Law Claims

The Universal Defendants contend that plaintiffs' claims for conversion, misappropriation, and unjust enrichment are preempted by the Copyright Act. Likewise, Scantlin and Puddle of Mudd argue that Burkitt's breach of partnership contract, breach of contract, conversion, misappropriation, and unjust enrichment claims are preempted. The defendants also contend that plaintiffs' state law claims are prescribed, i.e. barred by the applicable statute of limitations.

Preemption

The Copyright Act's preemption provision, 17 U.S.C. § 301(a), expressly preempts all causes of action within the scope of the Copyright Act.⁷⁸ See Daboub v. Gibbons, 42 F.3d 285, 288-89 (5th Cir. 1995). Courts apply a two-step test in order to determine whether a state law cause of action is preempted by the Copyright Act. Id. "First, the cause of action is examined to determine if it falls 'within the subject matter of copyright.' Second, the cause of action is examined to determine if it protects rights that are 'equivalent' to any of the exclusive rights of federal copyright, as provided in 17 U.S.C. § 106." Id. at 289 (quoting Gemcraft Homes, Inc. v. Sumurdy, 688 F. Supp. 289, 294 (E.D. Tex. 1988)). In deciding whether a claim is "equivalent" to any of the exclusive rights provided by the Copyright Act, courts consider whether an extra element of proof alters the "nature of the action so that it is qualitatively different from a copyright infringement claim." Perro v. Wemco, Inc., N.Civ.A. 94-1863, 1994 WL 382590, at *2 (E.D. La. July 19, 1994) (emphasis in original) (quoting Rosciszewski v. Arete Assocs., Inc., 1 F.3d 225, 230 (4th Cir. 1993)).

78 17 U.S.C. § 301(a) provides:

On and after January 1, 1978, all legal or equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright as specified by section 106 in works of authorship that are fixed in a tangible medium of expression and come within the subject matter of copyright as specified by sections 102 and 103, whether created before or after that date and whether published or unpublished, are governed exclusively by this title. Thereafter, no person is entitled to any such right or equivalent right in any such work under the common law or statutes of any State.

As Nimmer has acknowledged,

Although there is a tendency for the wronged plaintiffs to catalogue the iniquities that have befallen them under the rubric of every evil known to humanity, to the extent that the essence of the wrong is copyright infringement, then dressing it up in ill-fitting clothes cannot alter its identity.

1 NIMMER ON COPYRIGHT, § 1.01[B][1][j].

Plaintiffs concede that, to the extent defendants converted any musical compositions,⁷⁹ their claims are preempted by § 301(a) of the Copyright Act.⁸⁰ See Daboub, 42 F.3d at 289-90 (holding that state law conversion and misappropriation claims are preempted). Plaintiffs also admit that their claims for misappropriation of property and unjust enrichment, to the extent that those claims pertain to the musical compositions at issue, are also preempted by the Copyright Act. See id.; Asunto v. Shoup, 132 F. Supp. 2d 445, 453 (E.D. La. 2000) (noting that unjust enrichment claims are normally preempted); Tavormina v. Evening Star Prods., Inc., 10 F. Supp. 2d 729, 734 (S.D. Tex. 1998) (holding unjust enrichment claims to be preempted). Therefore, plaintiffs' claims for conversion, misappropriation, and unjust enrichment which are based on material that falls within the subject matter of copyright fail as a matter of law.

79 Plaintiffs assert claims for wrongful conversion pursuant to La. Civ. Code art. 2315.

80 In opposition to the Universal Defendants' motion to dismiss, plaintiffs incorporate by reference their opposition to the motion to dismiss the claims of Kenneth L. Burkitt. Rec. Doc. No. 41, p. 19. See Rec. Doc. No. 42, plaintiffs' opposition to motion to dismiss the claims of Kenneth L. Burkitt filed by Wesley R. Scantlin and Puddle of Mudd.

Plaintiffs also assert claims pursuant to Louisiana's Unfair Trade Practices Act ("LUTPA"), La.R.S. § 51:1401-19, based on the defendants' alleged misappropriation of plaintiffs' intellectual property.⁸¹ Plaintiffs' LUTPA claims, to the extent that they are based on defendants' misappropriation of copyright, are also preempted by § 301 of the Copyright Act. See Qualey v. The Caring Ctr. of Slidell, 942 F. Supp. 1074, 1078 (E.D. La. 1996); Perro v. Wemco, Inc., No. 94-1863, 1994 WL 382590, at *3 (E.D. La. July 19, 1994).

81 Rec. Doc. No. 27, ¶ 145 (count IX).

Burkitt also brings claims for breach of contract and breach of fiduciary duty/partnership contract against Scantlin and Puddle of Mudd.⁸² Burkitt admits that to the extent that these claims overlap with the protections afforded by the Copyright Act, they are preempted. However, these claims are also based on Burkitt's allegations that defendants improperly exploited Burkitt's "property rights," which include his alleged trademark rights. Similarly, plaintiffs' allegations with respect to their state law claims for conversion, misappropriation of property, unjust enrichment, and unfair trade practices/competition also relate to their alleged unregistered trademark rights. These claims, to the extent that they are related to the unregistered "Puddle of Mudd" mark, are clearly not preempted by the Copyright Act. Accordingly, to whatever extent plaintiffs' state law claims for conversion, misappropriation of property, unjust enrichment, unfair trade practices/competition, breach of fiduciary duty/partnership contract, and breach of contract are based on copyright, as opposed to trademark rights, those claims are preempted by the Copyright Act.

82 Burkitt's breach of contract claim (count V) is stated against Scantlin and Puddle of Mudd, while his breach of fiduciary duty/partnership contract claims (count IV) is only stated against Scantlin. See Rec. Doc. No. 27.

Prescription

Finally, the Universal Defendants assert that plaintiffs' state law claims against them have prescribed.⁸³ Plaintiffs argue that their claims are either "continuing torts" under Louisiana law and have not prescribed or that their claims arise under Missouri law and they are, therefore, subject to a five year statute of limitations. Plaintiffs' alternative argument that Missouri law applies is premised on the fact that the "Court has not yet determined which state law applies."⁸⁴

83 The Universal Defendants argue that plaintiffs' claims for conversion, misappropriation, unjust enrichment, intentional interference with business relations and/or contract, unfair trade practices, abuse of right, and legal fault have prescribed.
Plaintiffs state law claims for breach of fiduciary duty and breach of contract are not asserted against the Universal Defendants.

84 Rec. Doc. No. 51, p. 6.

Plaintiffs have not provided the Court with any basis for applying Missouri law. Plaintiffs' claims are clearly plead under Louisiana law and the Universal Defendants have moved for dismissal on the basis that the claims are prescribed pursuant to Louisiana law. Accordingly, the Court finds that Louisiana law governs plaintiffs' state law claims.

It is not contested that all of plaintiffs' state law claims alleged against the Universal Defendants are subject to a one-year prescriptive period in Louisiana.⁸⁵ Ordinarily, the party pleading prescription bears the burden of proving that the plaintiff's claims have prescribed. Terrebone Parish Sch. Bd. v. Mobil Oil Corp., 310 F.3d 870, 877 (5th Cir. 2002). However, when the plaintiff attempts to avail himself of the continuing tort theory, plaintiff bears the burden of establishing its applicability. See id. at 885-86; In re Med. Review Panel for Maria Moses, 788 So. 2d 1173, 1177 (La. 2001).

85 See Batiste v. Island Records, Inc., 179 F.3d 217, 225 (5th Cir. 1999) (conversion and misappropriation claims subject to one-year prescriptive period); America's Favorite Chicken Co. v. Cajun Enters. Inc., 130 F.3d 180, 185 n. 6 (5th Cir. 1997) (LUTPA claims subject to one-year peremptive period); Sadler v. Midboe, 723 So. 2d 1076, 1083 (La.App. 1st Cir. 1998) (unjust enrichment claim subject to delictual one-year prescriptive period); Cowan v. Fid. Interstate Life Ins. Co., 1989 WL 13555, at *6 (E.D. La. Feb. 13, 1989) (intentional interference subject to one-year prescriptive period); La. Civ. Code art. 3492 (specifically noting that one-year period for delictual liability applies to abuse of right claims).

Prescription commences to run on the date the injured party discovers or should have discovered the facts that would entitle him to file a lawsuit. Griffin v. Kinberger, 507 So. 2d 821, 823 (La. 1987); see La. Civ. Code art. 3492.⁸⁶ Plaintiffs knew or should have known of their claims when theCome Clean album was released nationally. Plaintiffs' FAC reveals that Puddle of Mudd's album Come Clean was released in August, 2001. See Weber v. Geffen Records, Inc., 63 F. Supp. 2d 458, 465 (S.D.N.Y. 1999) (limitations period begins to run once a plaintiff knows or should have known that he was not receiving royalties or credits as a co-author for the musical compositions). The FAC further acknowledges that the album was certified as a multi-platinum album.

86 Article 3492 provides that "prescription commences to run from the day injury or damage is sustained."

Plaintiffs do not argue that more than a year had not passed between the filing of this action and the date their state law claims arose.⁸⁷ Rather, plaintiffs invoke Louisiana's continuing tort doctrine to defeat prescription. The continuing tort doctrine is an exception to the commencement of prescription, where the tortious conduct is a continuing act. See Wilson v. Hartzman, 373 So. 2d 204, 206 (La.App. 4th Cir. 1979). For the continuing tort doctrine to apply, a plaintiff must allege both continuous action and continuous damage. Chiasson v. Doe, 618 So. 2d 38, 41 (La.App. 3d Cir. 1993). In the limited circumstances where the doctrine has been applied, prescription does not begin to run until the continuing cause of damages is abated. Id. at 40.

87 Burkitt's original complaint was filed on September 2, 2003. Rec. Doc. No. 1.

The doctrine of continuing torts arose out of Louisiana's immovable property law. See La. Civ. Code art. 3493, comment b. However, Louisiana courts have since applied the doctrine in cases unrelated to immovable property. See e.g., Bustamento v. Tucker, 607 So. 2d 532, 538-39 (La. 1992). Generally, the cases which have recognized the doctrine have found the "torts to be continuous in nature where each individual act would not necessarily give rise to a cause of action; but instead, the cumulative effect of regularly-occurring or continuous actions results in successive damages from day to day." Hunter v. Tensas Nursing Home, 743 So. 2d 839, 842 (La.App. 2d Cir. 1999).

Plaintiffs argue that "the conduct giving rise to their claims for conversion, misappropriation, unjust enrichment, unfair trade practices, and abuse of right (Counts 6-9 and 13) continues to the present."⁸⁸ Plaintiffs contend that their requests for injunctive relief evidence the continuing nature of these claims. In general, plaintiffs allege that:

88 Rec. Doc. No. 41, pp. 21-22.

Scantlin conspired with the Universal Defendants, other members of [Puddle of Mudd], and possibly other Defendants to deprive Burkitt and Sammon of their interests in the "Puddle of Mudd" name, goodwill, and assets and to propagate a fiction as to the origin of the Puddle of Mudd band. To date, [Puddle of Mudd] continues to use the "Puddle of Mudd" name, continues to propagate the fiction of the origin of Puddle of Mudd (and even profits from sales of propaganda that falsely purports [sic] to 'explain' the history of the band), continues to perpetuate the conspiracy by (among other things) disavowing the former [Puddle of Mudd] members, and continues to deprive Plaintiffs of their portions of the proceeds derived from the exploitation of the "Puddle of Mudd" identity.⁸⁹

89 Rec. Doc. No. 41, p. 22.

With respect to their claims for intentional interference and legal fault, plaintiffs also maintain that, notwithstanding the fact that they do not seek injunctive relief based on these claims, such claims are also continuing in nature.

Alternatively, plaintiffs, citing Perrilloux v. Stilwell, 814 So. 2d 60 (La.App. 1st Cir. 2002), contend that if their claims are not continuing in nature, they are discontinuous and each independent act of the defendants gives rise to independent causes of action.

The cases cited by plaintiffs provide little support for their continuing tort theory.⁹⁰ For example, in Bustamento v. Tucker, 607 So. 2d at 538-39, the Louisiana Supreme Court held that because a plaintiff must show outrageous conduct by the defendant to establish an intentional infliction of emotional distress claim, the continuing tort doctrine applies to the prescriptive period. Unlike an intentional infliction cause of action, plaintiffs' state law claims of conversion, misappropriation, unjust enrichment, and abuse of right do not contain an element of proof that relates to the ongoing nature of defendants' actions which would countenance the application of the continuing tort doctrine. Furthermore, the tortious acts alleged are not of a continuous nature in the sense that plaintiffs' claims have yet to arise or will not arise until the harmful acts abate. See Hunter, 743 So. 2d at 842. Rather, plaintiffs' state law claims arise with each alleged tortious act, and each claim has a corresponding prescriptive period. See id.; Perrilloux, 814 So. 2d at 62-63.

90 Plaintiffs cite Hunter v. Tensas Nursing Home, 743 So. 2d 839, 842 (La.App. 2d Cir. 1999) (rejecting plaintiff's claim that neglectful care by nursing home staff was continuous); Benton, Benton and Benton v. La. Pub. Facilities Auth., 672 So. 2d 720, 723 (La.App. 1st Cir. 1996) (applying continuing tort doctrine to LUTPA claim); Bustamento v. Tucker, 607 So. 2d 532, 538 (La. 1992) (applying continuing tort doctrine to intentional infliction of emotional distress claim); and Crump v. Sabine River Auth., 715 So. 2d 762 (La.App. 3d Cir. 1998) (holding that continuing tort doctrine applied), reversed by 737 So. 2d 720 (La. 1999) (holding that continuing tort doctrine did not apply).

Therefore, Plaintiffs' claims for conversion, misappropriation, unjust enrichment, and abuse of right have prescribed only to the extent that those claims arose more than one year prior to the filing of this lawsuit. However, as alleged, each of those claims arise with each tortious act and have not prescribed if they recurred within the one year prescriptive period.

On the other hand, because plaintiffs' intentional interference with contract claims arose when the Universal Defendants allegedly caused Scantlin to breach his partnership agreement with plaintiffs in 1999 or 2000, this cause of action has prescribed. Similarly, while plaintiffs contend that their legal fault claim is continuing in nature, they have failed to allege any continuing action or damage which would merit the application of the continuing tort doctrine.⁹¹ Therefore, these causes of action are time barred because they arose more than one year prior to the filing of this lawsuit.

91 Plaintiffs' "legal fault" or negligence claim brought against all of the defendants pursuant to La. Civ. Code art. 2315 consists of threadbare allegations which do not articulate any continuous action whatsoever. See Rec. Doc. No. 27, ¶¶ 174-77 (count XIV).

With respect to plaintiffs' unfair trade practices claims, in Benton, Benton and Benton v. Louisiana Public Facilities Authority, 672 So. 2d 720, 723 (La.App. 1st Cir. 1996), the Louisiana appellate court found that LUTPA's peremptive period is subject to the continuing tort doctrine. Following a line of cases from Louisiana's First Circuit Court of Appeals, including Benton, Benton, and Benton, supra, the Fifth Circuit held that the continuing violation doctrine applies to the LUTPA peremptive period. See Tubos de Acero de Mex., S.A. v. Am. Int'l Inv. Corp., 292 F.3d 471, 482 (5th Cir. 2002) (finding acts committed during the term of a lease to be continuous in nature). On the other hand, Louisiana's Third Circuit Court of Appeals has expressly held that the LUTPA's peremptive period is not subject to the continuing violation doctrine. Glod v. Baker, 899 So. 2d 642, 648-49 (La.App. 3d Cir. 2005).

Assuming that certain violations of LUTPA may be continuous pursuant to Louisiana law, plaintiffs' LUTPA claims are not of such a nature that they are subject to the continuing violation doctrine. While plaintiffs allege that the defendants' unfair trade practices have caused damages that are likely to continue, plaintiffs have not alleged acts of a continuing nature which would support the application of the doctrine to LUTPA's peremptive period. See Tessier v. Moffatt, 93 F. Supp. 2d 729, 737 (E.D. La. 1998) (finding continuing tort doctrine inapplicable to LUTPA claim because complaint and briefs did not reveal continuing nature of allegations). Therefore, plaintiffs' LUTPA claims concerning the alleged unfair and deceptive use of their assets which arose within one year of filing this action are not time barred, but plaintiffs' LUTPA claims which arose more than one year prior to filing this lawsuit are perempted.⁹²

92 Finally, plaintiffs assert that prescription was interrupted by promises made to Burkitt by Scantlin. Even assuming Scantlin recognized plaintiffs' rights through his promises, an acknowledgment by one defendant does not interrupt prescription as to other defendants. See La. Civ. Code art. 3464, comment c. ("as in the case of renunciation of prescription, an acknowledgment may be made only by a person who has capacity to alienate"); Wright v. La.-Pac. Corp., 662 So. 2d 853, 855-56 (La.App. 2d Cir. 1995). Plaintiffs have not alleged that the Universal Defendants acknowledged plaintiffs' rights. Accordingly, prescription has not been interrupted as to the Universal Defendants.
With respect to Scantlin, it is unclear which state law claims he purportedly acknowledged. Burkitt argues that Scantlin orally stated in the presence of others that he "'owed' Burkitt money for use of the [Puddle of Mudd] compositions." (Rec. Doc. No. 41, pp. 23-24). Even assuming that Scantlin acknowledged Burkitt's rights, the acknowledgment occurred in August, 2001, which only restarted the one-year prescriptive period. Again, Burkitt filed the original complaint in September, 2003, more than one year later. Any acknowledgment in 2004, with respect to claims which had already prescribed would have no effect. See Gary v. Camden Fire Ins. Co., 676 So. 2d 553, 556 (La. 1996) ("Acknowledgement [sic] interrupts prescription before it has expired, with the prescriptive period beginning to run anew from the time of the interruption.").

For the above and foregoing reasons,

IT IS ORDERED that:

1) Defendants' motion for judicial notice (Rec. Doc. No. 32) is GRANTED IN PART with respect to the trademark registrations and the certificates of copyright registration and DENIED IN PART with respect to the other materials;

2) Scantlin and Puddle of Mudd's motion to dismiss (Rec. Doc. No. 30) and/or transfer based on improper venue is DENIED;

3) Scantlin and Puddle of Mudd's motion for summary judgment (Rec. Doc. No. 31) with respect to the claims of plaintiff Sammon is GRANTED;

4) Scantlin and Puddle of Mudd's motion to dismiss (Rec. Doc. No. 30) and the Universal Defendants' motion to dismiss (Rec. Doc. No. 29) are GRANTED IN PART and DENIED IN PART as follows:

a) Plaintiffs' copyright infringement claims against all defendants are DISMISSED;

b) Plaintiffs' trademark infringement claims against all defendants brought pursuant to 15 U.S.C. § 1114 are DISMISSED;

c) Plaintiffs' unregistered trademark infringement claims brought pursuant to 15 U.S.C. § 1125 against the Universal Defendants are DISMISSED;

d) Plaintiffs' reverse palming off claims pursuant to § 43(a) of the Lanham Act are DISMISSED;

e) Plaintiffs' claims for an accounting against the Universal Defendants are DISMISSED;

f) Plaintiffs' state law claims for conversion, misappropriation, unjust enrichment, breach of partnership contract, and breach of contract, to the extent that they are preempted by the Copyright Act, are DISMISSED;

g) Plaintiffs' intentional interference with contract claims and legal fault claims are DISMISSED; and

h) Plaintiffs' state law claims for conversion, misappropriation, unjust enrichment, abuse of right, and unfair trade practices, to the extent that they arose more than one year prior to the filing of this lawsuit, are DISMISSED.