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identifying two sorts of arguments made on a Rule 12[b] motion-one aimed at the sufficiency of the pleadings under Rule 8, and the other aimed at the legal sufficiency of the claims
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01 Civ. 4430 (BSJ)(DF).
January 30, 2002
REPORT AND RECOMMENDATION
INTRODUCTION
Defendant in this action moves to dismiss the Amended Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure or, if dismissal is not granted, for a more definite statement pursuant to Rule 12(e). For the following reasons, I recommend that the motion be denied in its entirety.
BACKGROUND
A. Factual Background Pro se plaintiff James Tangorre ("Tangorre"), a/k/a/ "Salvatorie" and d/b/a "Salvatorie Studios, International," a photographer with his principal place of business in New York (Amended Complaint, filed August 29, 2001 ("Am. Compl."), ¶ 2), seeks monetary damages for the alleged copyright infringement of twenty-two photographs ( id. ¶¶ 1, 11, and Attachments A-F). Tangorre allegedly created these photographs in October 2000 for use in a year 2001 calendar by defendant Mako's, Inc. ("Mako's"), an entertainment company with its principal place of business in Atlanta, Georgia. ( Id. ¶¶ 1, 3, 12.) According to Tangorre, he agreed to provide photographs for the calendar and other uses, all pursuant to a written contract, dated September 2, 2000 ("the Contract"). ( See id. ¶ 17 and Attachments G-L.) Tangorre further claims that the parties agreed he would "receive credit as follows:) 2000 Salvatorie Studios, Intl. All Rights Reserved." ( Id. Attachment G.)
Tangorre alleges that, on October 23, 2000, he transmitted his photographs to a staff member at Mako's, in order for Mako's to review and select images for its calendar (Am. Compl. ¶ 13), and that he later delivered the photographs to Mako's in digital format, as well ( id. ¶ 14).
Tangorre further alleges that, from December 21, 2000 to April 5, 2001, Mako's licensed and distributed copies of his photographs to a third party, Barely Visible Bikini, Inc. ("Barely Visible"), to reproduce and display those photographs on cable television. ( Id. ¶¶ 20, 28, 32, 33.) Tangorre claims that, during this period of distribution, Mako's willfully omitted Tangorre's "Authorship Credit/Notice of Copyright," thereby violating 17 U.S.C. § 501, et. seq., of the Copyright Act, as well as the terms and conditions of the Contract. ( Id. ¶¶ 17-20, 23-26.)
B. Procedural History
On May 23, 2001, Tangorre first filed a pro se Complaint with this Court, alleging acts of copyright infringement by Mako's. On June 18, 2001, Mako's filed a motion to dismiss the Complaint. That motion was fully briefed as of July 9, 2001. On August 29, 2001, however, in an apparent effort to cure an alleged pleading defect that was the subject of that motion, Tangorre filed an Amended Complaint. Mako's then filed a second motion to dismiss, directed to the amended pleading; that second motion was fully briefed as of September 27, 2001. On October 10, 2001, I recommended that Mako's original motion to dismiss the Complaint be denied as moot, and I now address Mako's motion to dismiss the Amended Complaint.
Although the original Complaint named only "Salvatorie Studios, International" as the plaintiff, after a conference with the parties, the Court ordered that the caption be amended to reflect that the real party in interest is Mr. Tangorre, who apparently does business as "Salvatorie Studios International." ( See Order dated August 22, 2001 (mem. endors.).)
There is one other motion currently pending before this Court. On November 30, 2001, Tangorre filed a motion to compel document production and for sanctions, pursuant to Rule 37 of the Federal Rules of Civil Procedure. This motion was fully briefed as of December 20, 2001, and will be addressed in a separate opinion. In addition, on January 30, 2002, the Court ordered defendant's counsel, Howard Gotbetter, Esq., to show cause why he should not be disqualified from appearing in this action, given that it appears he is not admitted to the bar of this Court.
In this motion, Mako's moves, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, to dismiss the copyright claims for failure to state a claim for infringement, based on Tangorre's supposed failure to plead the time frame in which the alleged infringing acts took place. ( See Defendant's Memorandum in Support of Dismissal Etc. Motion, dated September 20, 2001 ("Def. Mem."), at 2.) Mako's further argues that any alleged contract claims "are totally dependent on the copyright claim[s]," and therefore should not be permitted to stand, if the copyright claims are dismissed. ( Id.) If, however, the Court declines to dismiss the copyright claims, Mako's seeks an order under Rule 12(e) of the Federal Rules of Civil Procedure, directing Tangorre to separate his alleged copyright claims from his alleged contract claims. ( Id.)
DISCUSSION
I. DEFENDANT'S MOTION TO DISMISS THE AMENDED COMPLAINT SHOULD BE DENIED .
A. Legal Standards 1. Rule 12(b)(6)
The Court's function on a motion to dismiss is "not to weigh the evidence that might be presented at trial but merely to determine whether the complaint itself is legally sufficient." Kopec v. Coughlin, 922 F.2d 152, 155 (2d Cir. 1991) (citation omitted). A claim may not be dismissed under Rule 12(b)(6) unless "it appears beyond doubt that plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Valmonte v. Bane, 18 F.3d 992, 998 (2d Cir. 1994), quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957). The Court must accept all factual allegations in a complaint as true and "draw inferences from those allegations in the light most favorable to the plaintiff." Jaghory v. New York State Dep't of Ed., 131 F.3d 326, 329 (2d Cir. 1997). Further, where, as here, a plaintiff is proceeding pro se, the Court must construe the pleadings liberally, Branham v. Meachum, 77 F.3d 626, 628-29 (2d Cir. 1996), and must "interpret them to raise the strongest arguments that they suggest," Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994). In addition to the facts set forth in the complaint, the Court may consider documents attached thereto and incorporated by reference therein. Automated Salvage Transp. Inc. v. Wheelabrator Envtl. Sys., Inc., 155 F.3d 59, 67 (2d Cir. 1998).
Although Mako's has moved for dismissal under Rule 12(b)(6), its principal argument is that Tangorre has omitted from his pleading certain allegations necessary to support his copyright claims. ( See Def. Mem. at 2.) This type of argument is generally raised under Rule 8(a) of the Federal Rules of Civil Procedure, which addresses the sufficiency of pleadings. Because Mako's provides no other argument as to how Tangorre's copyright claims are legally insufficient, this Court looks to the requirements of Rule 8(a).
2. Rule 8(a)
The elements of a copyright infringement claim are: (1) ownership of a valid copyright and (2) copying of constituent elements of the work that are original. Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991); accord Fonar Corp. v. Domenick, 105 F.3d 99, 103 (2d Cir. 1997); Range Road Music, Inc. v. Music Sales Corp., 76 F. Supp.2d 375, 379 (S.D.N.Y. 1999). To plead these elements sufficiently under Rule 8(a), a complaint must allege: (1) which specific original works are the subject of the copyright claim; (2) that the plaintiff owns 4 the copyrights in those works; (3) that the copyrights have been registered in accordance with the statute; and (4) "by what acts during what time" the defendant infringed the copyright. Kelly v. L.L. Cool J., 145 F.R.D. 32, 36 (S.D.N.Y. 1992), aff'd, 23 F.3d 398 (2d Cir. 1994) (citing Franklin Electronic Publishers v. Unisonic Prod. Corp., 763 F. Supp. 1, 4 (S.D.N.Y. 1991), aff'd, 23 F.3d 398 (2d Cir. 1994); accord Carell v. Shubert Org., Inc., 104 F. Supp.2d 236, 251 (S.D.N.Y. 2000); Lindsay v. R.M.S. Titanic, 52 U.S.P.Q.2d 1609, 1611 (S.D.N.Y. 1999).
B. Plaintiff's Copyright Allegations
Tangorre has plainly alleged, and Mako's does not presently dispute, that twenty-two original photographs are the subject of the alleged infringement (Am. Compl ¶ 16 and Attachments D, F), and that Tangorre is in possession of a valid and properly registered copyright for those photographs ( id. ¶¶ 1, 8, 11, and AttachmentsA-F). On this motion, the sole argument advanced for dismissal ofTangorre's copyright claims turns on the fourth pleading requirementset forth above — the requirement that plaintiff specify theallegedly infringing acts, together with the time period duringwhich those acts allegedly occurred. According to Mako's, Tangorre'scopyright claims are insufficient because "nowhere does plaintiffset forth the exact acts during what time frame the allegedinfringement took place." (Def. Mem. at 2; see also id. ("Plaintiff shoots and sprays allegations of evil deedsby defendant and persons associated with defendant BUT does NOT list any time frames when such deeds took place.").)
The Amended Complaint, however, sufficiently "narrows the infringing acts" to satisfy the fourth requirement. See Carell, 104 F. Supp.2d at 251. Although Tangorre does not plead every act of infringement separately and assign a specific date to each, the Amended Complaint does set forth a limited period (December 21, 2000, through April 5, 2001) during which Mako's allegedly distributed and licensed copies of Tangorre's photographs to Barely Visible (Am. Compl. ¶¶ 15, 28-33), for the purpose of preparing derivative works electronically and displaying the photographs publicly on VH1 Television through a local cable provider ( id. ¶¶ 20, 28). Tangorre also alleges that, during this period of time, Mako's infringed his copyright by authorizing both the reproduction and making of derivative copies of his photographs. ( Id. ¶¶ 25, 32-33.) Further, Tangorre asserts that such acts render Mako's directly, contributorily, and vicariously responsible for the infringement ( id. ¶¶ 26, 30, 33), and are in violation of 17 U.S.C. § 501, et. seq. of the Copyright Act ( id. at 5-7).
Accepting the allegations in the Amended Complaint as true, Tangorre has adequately alleged both the nature and time frame of the alleged acts of infringement by Mako's. Compare Carell, 104 F. Supp.2d at 251 (complaint sufficient under Rule 8, "despite the fact that each individual infringement was not specified," where plaintiff alleged the publication of certain designs in national and international stage productions and videos in 1997 and 1998 and their use in certain commercial products) and Kelly, 145 F.R.D. at 36 n. 3 (infringement claim adequately supported when plaintiff narrowed the infringing act to the publishing and distribution of two specific songs during 1991) with Mahnke v. Munchkin Prod., Inc., No. 99 Civ. 4684 (LTS), 2001 WL 637378, at *5 (S.D.N.Y. Jun. 07, 2001) (no proper allegation of the nature of the infringing act with only "generic references to an infringing 'baby soda bottle,'" beginning some time in 1993) and Plunket v. Doyle, No. 99 Civ. 11006 (KMW), 2001 WL 175252, at *5 (S.D.N.Y. Feb. 22, 2001) (claim insufficiently detailed where plaintiff merely alleged that defendants had entered into or had offered licenses "granting the rights to exploit [the books at issue] in various media" during an unspecified period of time).
Moreover, the Court should apply the pleading requirements with some leniency in this case, given Tangorre's pro se status. On this point, the Court is cognizant of the fact that Mako's 6 has repeatedly attacked Tangorre's status as a pro se litigant. ( See, e.g., letters from Howard Gotbetter, Esq., to the Court, dated August 23, 2001, September 29, 2001 and October 22, 2001, arguing, for example, that Tangorre has used an attorney "to do various things in litigation.") Even if Tangorre has been aided by counsel, however, no counsel has appeared in the case, and the Court is not persuaded that Tangorre has "abused" the pro se system, as Mako's asserts. ( See id.) Nonetheless, the Court is not suggesting that the outcome of the motion to dismiss should turn on Tangorre's pro se status. Although Tangorre's allegations of copyright infringement could have been pleaded with greater precision, they do satisfy the basic pleading standards of Rule 8(a).
Thus, the Amended Complaint adequately pleads the elements necessary to state a claim for copyright infringement, and I recommend that Mako's motion to dismiss Tangorre's copyright claims be denied. Further, because Mako's has advanced no argument for the dismissal of Tangorre's contract claims, other than that the contract claims should not survive if the copyright claims are dismissed ( see Def. Mem. at 2), I recommend denial of that aspect of Mako's motion to dismiss, as well.
II. DEFENDANT'S MOTION FOR A MORE DEFINITE STATEMENT SHOULD ALSO BE DENIED .
Mako's alternatively requests that Tangorre be directed "to separately plead each of his alleged contract claims per Rule 12(e)." (Def. Mem. at 2.) Mako's asserts that Tangorre "lumps [contract and copyright claims] all together," pointing specifically to Paragraph 23 of the Amended Complaint, in which Tangorre requests relief under the Contract and also under certain provisions of the Copyright Act. ( Id.; Am. Compl. ¶ 23.) For his part, Tangorre contends that the copyright and contract claims are "so tightly bound they cannot be separated." ( See Plaintiff's Reply to Defendant's Memorandum in Support of Dismissal, dated September 25, 2001, at 2.) Yet both 7 parties' arguments miss the mark, as Rule 12(e) does not necessarily require a plaintiff to separate his claims, even when the claims are distinct.
Fed.R.Civ.P. 10(b) does state that
"[e]ach claim founded upon a separate transaction or occurrence . . . shall be stated in a separate count," but such separation is only required when it "facilitates the clear presentation of the matters set forth." Id.; see, e.g., Pullen v. NorthStar Presidio Mgmt. Co., LLC, No. 3:98 Civ. 771 (WWE), 1998 WL 696010, at *2 (D.Conn. Sept. 11, 1998) (where a complaint "is already sufficiently clear . . . it would only serve to cause unnecessary delay to require plaintiff to re-plead each count separately").
Rather, Rule 12(e) provides that, "[i]f a pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading, the party may move for a more definite statement before interposing a responsive pleading." Id. Such motions "should not be granted unless the complaint is so excessively vague and ambiguous as to be unintelligible and as to prejudice the defendant seriously in attempting to answer it." Kok v. First Unum Life Ins., Co., 154 F. Supp.2d 777, 781-82 (S.D.N.Y. 2001) (citations omitted); see also In re European Rail Pass Antitrust Litig., 166 F. Supp.2d 836, 844 (S.D.N.Y. 2001) (citations omitted) (Rule 12(e) motions are "generally are disfavored because of their dilatory effect"); accord Fisher v. Bldg. Serv. 32B-J Health Fund, No. 01 Civ. 7708 (BSJ), 2001 WL 1586689, at *2 (S.D.N.Y. Dec. 11, 2001). Further, where a complaint meets the notice pleading requirements of Rule 8, a Rule 12(e) motion should be denied. Kelly, 145 F.R.D. at 35.
Assuming that Mako's is arguing that the Amended Complaint is too vague to give fair notice of Tangorre's claims, see Conley, 355 U.S. at 47-48, that argument should be rejected. Indeed, Mako's never suggests that it is unable to understand or respond to the claims asserted against it. Further, Paragraph 23 of the Amended Complaint, about which Mako's particularly complains ( see Def. Mem. at 1), does not stand in a vacuum. Several other paragraphs of the Amended Complaint set out allegations relating to the specific terms of the Contract and to the alleged copyright infringement ( see, e.g., Am. Compl. ¶¶ 15, 17, 25-26, 28-33), and the pleading ultimately states separate claims for relief ( see id. at 5-7 (seeking, inter alia, statutory damages in the amount of $150,000 per allegedly infringed photograph, $3135.61 for the unpaid balance on the Contract, $30,000 in damages for breach of contract, and costs)).
Under the circumstances, the Amended Complaint cannot be considered so vague or ambiguous as to prejudice Mako's. The pleading also meets the pleading requirements of Rule 8, in that it gives fair notice of Tangorre's copyright and contract claims and of the relief sought on each claim. Mako's motion under Rule 12(e) for a more definite statement should therefore be denied.
CONCLUSION
For all of the foregoing reasons, I recommend that Mako's motion be denied in its entirety.
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Barbara S. Jones, United States Courthouse, 40 Centre Street, Room 2103, New York, New York 10007, and to the chambers of the undersigned, United States Courthouse, 40 Centre Street, Room 631, New York, New York, 10007. Any requests for an extension of time for filing objections must be directed to Judge Jones. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140, 155 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 58 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).
Dated: New York, New York January 30, 2002
Respectfully submitted,
DEBRA FREEMAN United States Magistrate Judge Copies mailed to:
Mr. James Tangorre, pro se Salvatorie Studios, International 552 West 43rd Street, 5th floor New York, N.Y. 10036
Howard Gotbetter, Esq. 100 Central Park South New York, N.Y. 10019