Ross v. Apple, Inc.

RESPONSE In Opposition To 19 Defendants Motion To Dismiss

S.D. Fla.September 8, 2016

UNITED STATES DISTRICT COURT FjLEo By TRICT OF FLORIDA D.C.SOUTHERN DlS CASE NO. 16-61471-CV (Judge Wiliams/simonton) SEP g j 2gjç ROSS, QXN Q ETHOMAS S. ) . g. yjao.og tA. t.kPlaintiff . VS. APPLE lN C., a California com oration Defendant PLAINTIFF'S RESPONSE IN OPOSITION TO DEFENDANT'S M OTION TO DISM ISS NOW COMES Plaintiff, Thomas S. Ross (Ross), Attorney Pro Se and files his Response in opposition to Defendant's Motion to Dismiss and, in so doing, Ross objects to APPLE, INC. (App1e), alegations, conclusions and interpretations of facts, in whole or in part, as incomplete, selective, m isstated and confusing. ln support of this cause, Ross states, on information and belief, as follows: On or about August 23, 2016, Apple, filed Motion to Dismiss pursuant to 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedures aleging 1) Lack of Jurisdiction and 2) failure to state a claim upon which relief may be granted. ln short, Apple's position is that the Court lacks jurisdiction, Ross has no case, and even if he does, it has immunity. Case 0:16-cv-61471-KMW Document 23 Entered on FLSD Docket 09/08/2016 Page 1 of 22 TABLE OF CONTENTS 17 Ctiltlre ttl state It (llft1- rrl tlllclt,r tlltl 1 :! (1)) (t;) ...................................................................... 1 () Fail e to show ownership of valid ttcopyright of ideas'' 1 1 l) 17 Ctil () ttl 1- (lklzti lr)r 1- rlrl-zéjl-rlj Nr()rlc. ......................................... 1 :! Ië Jtl-llzrtl tll ;t1l(,éjt) étlt)tl s s ltrlcl strl-lcl-rléj sl-rll-lctrl-t)?. ..................................................... 1 3 a) l) f; tlll st ti 1t1 si rrll-lftri ................................................................................................ 1 21... (2. (zllt1-lzas Jtrtl llftr:rt)tl l))r ()t)1qr-13 t, ilzéjtt)zl () (ltrilze (1 Jtrtl tizyl e -l)arre (1 ............................. 1 5 ét) () t)l:r-13 en rl irléjtl)l () (ltrl-rltl ilzzrrltlrlize s I)1)le ' s alle éI t) cl () onduct.................................. 1 é; l)) (2 ()J))?f1* éillt (lllt1-lI1s ftrkl t1* rlle -17 arred................................................................ 1 */ D. Lack of standing to bring Lanham Act Claim, State Law claims should be dismissed, State 1aw claims are preempted by the Copyright Act, and alternately, plaintiff fails to state a claim Case 0:16-cv-61471-KMW Document 23 Entered on FLSD Docket 09/08/2016 Page 2 of 22 TABLE OF AUTHORITIES Cases ACLU Foundation v. Burr, 952 F.2d 457 (D.C. Cir. Apple v. Samsung, 727 F.3d 1 2 1 4 (20 l 3 Arista Records, et al., v. Greubel, 453 F. Supp. 2d 96 1 Bell Atlantic Corporation v. Twombly U.S. , , 127 S.Ct. Brought to L fe Music, Inc. v MCA Records, lnc., 65 (2006) U.S.P.Q.Zd 1954 2003 L 296561 (S.D. N.Y. 2003) 11 Campbell v. Iyells Fargo Bank, .A(W., 78 1 F.2d 440 (5th Cir. 1980),-.----....-.-..-...................-.-.-.-...... 10 C1-f-p ofGainesville v. Florida Power t:o f ight Co., 488 F-supp. 1258 (1980)..........................16, 17, 18 Dell, Inc. v. 3K Computers, L L C, No. 08-80455 IV, 2008 W L 6600766, at *3 (S.D.FIa. Oct.7, 2008) 18 lTlt? c Ar. ibbçïl-tllbvest lytzz;/r il1l1.. Jh(xtt.. 1 () -7 17.3 (1 1 :! 6) -7 ( 81'1 (2 1-s. 1 6) 6) -7 b ............................................. IL () . ' - * * th . Ellls v Di le, 177 F.3d 503, 506, 50 U.S.P.Q.Zd 1790, 1999 FED App. 0172P (6 Clr, 1999) ............ 15 Ji7?-tr.l/ 3/. tqrf-/.;/ t/a/7lLlrt?*trzf/tzzltrzfz/;, zl zl 17.3 (1 tît1 -7 ( 11t1 tz ir. 1 6)6) é; ) ........................................................ IL 1 (zll613::t11 (z?7/ 3?. jàïl-l3j(, 11 1-J. E;.17.(;?.:! (1 1 5 6) zl lw ;! l :! 5 () -F (lï.IT). IkI 1-(:11. 1 6) El il ). ...................................... 1 !; XI-liop A?. Lbïl-l1j; 11 kb41)14l6ll-l1j;, Zl ti *3 l-J. S; . t; 6) ( 1 6) 11 21) .................................................................... 1 IL àql-6l t, . )7 5/. JTt7/;?>2f7F0, 6) () 17.59 (1 :1 ti Zl ( 110'1 (l1-r. 1 6) 6) 6).......--.......-.-......-..............-................................ IL () 1 rl rtl l421tl1l1, 2121 1 17.54 (1 6) :7 ,7, 6) 1 ti (I7 k) (l. (2 ir. 1! () () t; ) ..................................................................... 1 E! Jones v. Blige 558 F 3d 485 49 1 89 U S P Q.2d 2029 (6tl1 Cir 2009 15 ' , > ' > Kaiser Aluminum tf Chem. Sales v. Avondale Shipyards, Inc., -677 F.2d 1 045 (5th Cir.1982). ............ 10 f eatherman v. Tarrant Ctpl/p/.v Narcotics Intelllkence & Coordination Unit, 507 U.S. 163, l 67-169, l 13 f ewis Galoob Toys, Inc. v. Nintendo ofAm., Inc., 964 F.2d 965, 967 (9th Cir. Cal. 1992 ................... 13 JTt/ls/t?l,. )/ 37. COt?JrtZJ ,1 tjE tir?i z1?- â?l-sl-@ kh/-vl tçtll,, 1 l e/ 17.3 cl :! 21:! ( fitll (2 ir. 1 6) 6) 7)........................................ 1 () arvullo v. Gruner (Q Jahr, AG & Co, 2001 Copr. L. Dec. P 28204, 2001 W L 40772 (S.D. N.Y. 2001) 11 10 Mazer v. Stein, 347 U.S. 20l , 2 1 7 (1954) Jslrtlklrt?rr/w 3?. IT ittlç?, 1 () 6) 17.3 cl dl 5 :! ( 1'' (2 ir. 1 6) 6) -7) .................................................................. 1 () sfedlmmune, Inc. v. Genentech, Inc-, Not Reported in F-supp-zd (2004) ..................................16, 17 Lblvl*6l zl 11. 1OI*f/(l (?0. 17. zkïl**2ï, 6) 6/ 1 17.11 (1 Z1 1 R/ ( 1 6) 6/ 3 )..................................................................... 1 ;! National Basketball Assocl-ation v. hfotorola, Inc-, 105 F. 3d 84 1 (2d Cir. 1997)............................. 21 Peter F. Gaito Architecture, L L C v. Simone Development Corp., 602 F. 3d 57, 66 (CA2 20 10)........... 14 PODS Enterprises, Inc. v. ABF Freight Systems Inc., Not Reported in F.supp.zd (20 1 1). ........ 16,17, 18 JktIJJ 37 Llblll-tL?tl uh/tz/t?pr, 1N1 () () -7 -() A? - t; 1 -7 ;! 3 -Jl (2 ( 64 .12). l711t. :! () () 6) ). .................................................... 1 dl Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512, 122 S. Ct. 992, 998, 1 52 L. Ed. 20 -1 (2002)............. 12 kotzzl?i en !7 tzl/??i 3?. tir?i l-tL,ti kM/J/el, 1 zl il 17 .3 (1 1 ;! t9:! ( 1 1 tll (2 ir. 1 6) 6) il ) .................................................... 6) Twentieth Century Sporting Club, Inc. v. Transradio Press Service, 300 N.Y.S. l 59 .Y. Sup. Ct. 1 937) 21 . tl1 U.S. Sportlng Products, Inc. v. Johnny Stewart Game Calls, Inc, 865 S. . 2d 2 14 (Texas Ct. App., 10 UnitedFabrics 1nt 'l, Inc. v. C&J Wear, Inc., Case No. 09-56499 (9th Cl'r., Jan. 26, 20 1 1) ( allace, J. .. 13 Warshall v. Price, 629 So. 2d 903, 904 (FIa. Dist. Ct. App. 1994) (citing 12 Fla. Jur. 2d, Conversion and 3 Case 0:16-cv-61471-KMW Document 23 Entered on FLSD Docket 09/08/2016 Page 3 of 22 Other Authorities Charles A. W right & Arthur R. Miller, Federal Practice and Procedure, j 1357, at 601 (1969) ........... 10 M ohammad in Naser , Computer SoQware: Copyrights v. Patents, 8 Loy. Law & Tech. Ann. 37 4 Case 0:16-cv-61471-KMW Document 23 Entered on FLSD Docket 09/08/2016 Page 4 of 22 1. REBUTAL Ross denies Apple's claim s and substantially disputes Apple's narrative and conclusions in its lntrodudion and Baekground. See Motion to Dismiss, ! 1, pg1 and ! ll, pg. 2. Ross's claims are both plausible and plead facts that allow the Court to draw a reasonable inference that the defendant is liable for the m isconduct alleged. A. Defendant's lntroduction Section Specifically, Ross does not claim linfringem ent on his ideas'', as that would be absurd. Ross does suftk iently identify eopyrightable expressive elem ents that Apple infringes upon, and explains what expressive elem ents in the drawings are ineom orated in Apple's two dimensional images in packaging, advertising and other media, as well as its three dimensional products specitkally identified in the complaint, starting as far back as 2007, for the last three years, (Compl. ! 41, 49, 50, 77; Pgs. 18, 21, 28.), and as recently as September 7, 2016. (iphone 7*) ERD 1992 iPH ONE 7* 2016 *loverall Iook andfeel ' Petrella v MGM, 572 U. S. (2014) Case 0:16-cv-61471-KMW Document 23 Entered on FLSD Docket 09/08/2016 Page 5 of 22 Contrary to Apple's assertions that no explanation is given regarding survival of expressive design elements in successive products, Ross explains this process in some detail. See Compl, pgs 12- 22. In his Complaint, Ross alleges two specitic claims: 1) Misappropriation of his personal property, the Electronic Reading Device (EIkD), and 2) Infringement of five copyrighted works. ln addition, Ross alleges two derivative elaims, a) unjust enrichment resulting from the misappropriation of personal property, and b) unjust enrichment resulting from infringements of Ross's copyrights. Contrary to Apple's assertions, the claims are properly laid out in sufficient detail to give Apple proper notice and to show the basis of Ross's claims and relief sought under the Law of Restitution, for the misappropriation, and Copyright Laws for the infringements, sufficient to allow this Court to draw a reasonable inference that Apple is liable for the misconduct alleged. B. Defendant's Background Section ln the Background section of Apple's M otion to Dismiss, much is said about Ross's attempt to patent the ERD, how Apple had no access to the abandoned 1992 application, and how Ross is trying to tçcapitalize'' with his copyrights what he couldn't do with his patent applications. W hen considering the information in the Complaint and its attachments, Ross plainly alleges that Apple misappropriated his personal property, and, given the very public pronotmcements by top Apple executives that they stole ideas with abandon, Ross laid out a plausible groundwork of further discovery regarding Apple's theft of the identity of Ross's 1992 ERD. Separately, Ross clearly lays out a second rail that alleges infringement of five separate copyrighted works, again and again for years, for the last three years and to the very present. 6 Case 0:16-cv-61471-KMW Document 23 Entered on FLSD Docket 09/08/2016 Page 6 of 22 W ith each suceeeding product, Apple tweaked functional elements, and made marginal improvements here and there, but retained the same fundamental design that Apple itself has declared to be non-functional (omamental), and that it has been intentionaly replicated in al1 of the products in its line of iphonel, ipod@ and ipadl that have been identified in the Complaint. Apple itself has identified this om nmental design as the rectangular shape, rotmd conwrs, dominant tlat screen design that would be identifiable in its entire line iphones*, ipads* and ipod Touch@. This is the very design that Ross alleges, was first manifested in his 1992 ERD, See Compl. ! 49, 50; Pg 21, 22, 23. Also see Apple v. Samsung, 727 F.3d 1214 (2013). W hile Ross clearly laid out two tracks of alleged misconduct, misappropriation of personal property, on the one hand, and infringements of copyrights, on the other, as a practical matter, a showing of access in furtherance of misappropriation of personal property, will also benefit a showing of access in furtherance of allegations of infringement. Once again, Ross makes it abundantly clear that his narrative regarding his failed patent application in 1992 and 1999, and his 2007 action against the United States Patent and Trademark Office (USPTO), is to evidence 1) the existence and identity of the EItD, as personal property, 2) that it was created in 1992 and 3) that Ross never abandoned the EItD, as personal property. Obviously, this narrative was in furtherance of Ross's claim of misappropriation of his ERD as personal property, and not some quixotic chase for the impossible dream . lI. STANDARD OF REVIEW A. Pro Se Pleadings Ross is a Pro Se Plaintiff, and, as this Honorable Judge has made abundantly clear, he is expected to follow strictly the Rules of Civil Procedtlres and Local Rules, as well as any Case 0:16-cv-61471-KMW Document 23 Entered on FLSD Docket 09/08/2016 Page 7 of 22 practicing member of the federal bar. Nonetheless, the courts have held that pleadings of a Pro Se litigant, are to be construed liberally and are held to *Ga less stringent standard thanpleadings drajted by attorneys.' Tannenbaum v. United States, 148 F.3d 1262, 1263 (1 1th Cir.1998). B. As to Rule 12(b)(1) - Jurisdiction In his Complaint, Ross states that this Cotu't has jtlrisdiction over disputes related to the Copyrights, Patents and Trademarks and includes the Lanham Act in his statement of the Court's jurisdiction, as a mater of form, to include jurisdiction over of al1 acts of Congress with respect to Copyrights, Patents and Trademarks. See Compl. Pg. 3. Apple aleges thatjust in case Ross has a Gtanham Claim' somewhere, that it should be dismissed, even though Apple could not point to any, within the four walls of the Complaint. See Motion to Dismiss, ! 111, 1V(B) pgs 3 and 14. ln addition, Defendant claims that Ross asserted claims under Florida Law that should be dismissed based on copyright preemption. W hile intertwined, fact is that the claim brought pursuant to misappropriation of personal property, is a parallel claim that is separate and distinct from the federal claims under copyright law. Pursuant to 28 U.S. Code j 1367, when a claim under state law is parallel to a claim of federal law, this Court has supplemental jurisdiction over the claim of misappropriation of personal property, brought under Common Law. Furthermore, given that the claim of misappropriation is intertwined with claims under the Copyright Act, makes resolution of the jurisdictional issue on a 12(b)(1) motion, improper. C. As to Rule 12(b)(6) - Failure to state a daim Apple, also aleges failure to state a claim, pursuant to Rule 12(b)(6). See Defendant's Motion to Dismiss at ! 111, pg 3. 8 Case 0:16-cv-61471-KMW Document 23 Entered on FLSD Docket 09/08/2016 Page 8 of 22 ln considering a motion to dismiss for failure to state a daim pursuant to Rule 12(b)(6), the Complaint must be liberally construed in favor of plaintiff, and all facts pleaded in the original complaint must be taken as true. Campbell v. Wells Fargo Bank, N A., 781 F.2d 440,442 (5thCir. 1980). Also see Doe v. Northwest Bank Minn., NA., 107 F.3d 1297, 1303-04 (8'' Cis. 1997), and Arista Records, et al., v. Greubel, 453 F. Supp. 2d 961 (2006) ' ''IA.J motion to dismissforfailure to state a claim is viewed with disfavor and is rarely granted ' Citing Kaiser Aluminum tf Chem. Sales v. Avondale Shlpyards, Inc., 677 F.2d 1045, 1050 (5th Cir.1982). The complaint must be reviewed in the light most favorable to the plaintiff, McM orrow v.L ittle, 109 F.3d 432, 434 (8'' Cir. 1997), and should not be dismissed unless it is clear beyond doubt that the plaintiff can prove no set of facts thereunder which would entitle him or her to relief. Iiafey v. f ohman, 90 F.3d 264, 266 (8',' Cir. 1996). Also, ln Bel Atlantic Corporation v. Twombly, U.S. , , 127 S.Ct. 1955, l 969 (2007) the Supreme Court held that GGonce a claim has been stated adequately, it may be supported by showing any set offacts consistent with the alegations ofthe complaint. ' 1d. at , 127 S.Ct. at 1969. Gnlnhe question therefore, is whether, in the light mostfavorable to the plaintt and with cvery doubt resolved in hisfavor, the complaint states any valid claimfor relief' L tlwcr.p v. Texas A&M University System, 1 17 F.3d 242, 247 ? (5th Cir. 1997) quoting Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure, 51357, at 601 (1969). ln its motion to dismiss, Apple argues about lack of access, to Ross's 1992 ERD, and lack of similarity between Ross's copyrighted works and Apple's products and derivatives. That's all fine and good, however, a m otion to dism iss is not a device for testing the truth of what is asserted or for determining whether the plaintiff has any evidence to back up what is in the complaint. See ACLU Foundation v. Burr, 952 F.2d 457,467 (D.C. Cir. 1991). Gl'he issue is not 9 Case 0:16-cv-61471-KMW Document 23 Entered on FLSD Docket 09/08/2016 Page 9 of 22 whether theplaint#wil ultimatelyprevail but whether the plaintffis entitled to of/'cr evidence to support the claims. Id Thus, a motion to dismiss should be granted ''as apractical matter . . , only in the unusual case in which aplaintffincludes alegations that show on theface ofthe complaint that there is some insuperable bar to relief' F.3d 667. 671 (8th Cir.1995) (quoting Hishon v. King & Spulding, 467 U.S. 69, 73 (1984:. Nonnally, in deciding a motion to dismiss for failure to state a claim, courts must limit their inquiry to the facts stated in the Complaint and the documents either attached to or incorporated See Frev v. Citv ofHerculaneum. 44 in the Complaint. 111. COUNTER ARGUM ENTS A. Failure to state a claim under Rule 12(b)(6) Apple asserts that Ross 1) did not allege that he owns a valid copyright 2) that Apple copied original elements of his copyrighted work. Then Apple claims that 3) it is immunized under the Noerr-pennington Doctrine, and 4) that Ross's claims are time-barred. Ross incorporates herein his analysis of the standard of review for a Rule 12(b)(6) chalenge, above. To withstand a motion to dismiss, a copyright infringement case must allege which specific original work is the subject to the claim, that the plaintiff owns the copyrighted work, that the copyrighted work has been registered in accordance with statute, and what acts and during what time the defendant infringed the copyright. See Brought to L t/? Music, Inc. v MCA Records, Inc., 65 U.S.P.Q.Zd 1954 2003 WL 296561 (S.D. N.Y. 2003) citing Marvulo v. Gruner to Jahr, AG tf Co, 2001 Copr. L. Dec. P 28204, 2001 WL 40772 (S.D. N.Y. 2001). To the extent Apple is suggesting that there is a heightened pleading requirement for copyright litigation, that position does not comport with the liberal pleading requirements 10 Case 0:16-cv-61471-KMW Document 23 Entered on FLSD Docket 09/08/2016 Page 10 of 22 found in the Federal Rules of Civil Procedure. Although Federal Rule of Civil Procedure 9 imposes heightened pleading standards for allegations of fraud or mistake, most causes of action, including copyright infringement claims, must satisfy only the minimal notice- pleading requirements of Federal Rule of Civil Procedure 8. See Swierkiewicz v. Sorema NA., 534 U.S. 506, 512, 122 S. Ct. 992, 998, 152 L. Ed. 2(1 1 (2002); f eatherman v. Tarrant Cbl/nfy Narcotics Intelligence d: Coordination Unit, 507 U.S. 163, 167-169, 1 13 S. Ct. 1 160, 1 163, 122 L. Ed. 2d 517 (1993); see also MidAm. Title Co. v. Kirk, 991 F.2d 417 (1993) s'howing page number 3 of 9. The simplified notice-pleading standard relies on liberal discovery rules and summarpjudgment motions to define the disputed facts and issues and dispose of meritless, claims. See Arista Records, et al., v. Greubel, 453 F. Supp. 24 961 (2006). A plain reading of the Complaint shows that Ross did assert ownership not of one copyright, but five copyrights (Compl. ! 5, 27, pgs.8-11 and Exhibit B 1 through 5) and that Apple copied each one of them. See :34, 35, 36, 37, 38 and 38, pgs. 12-18. a) Failure to show ownership of valid Rcopyright of ideash'. As already stated, Apple keeps alleging that Ross failed to show that çshe owns a valid copyright in his idea'', which is utter nonsense, as one cannot prove ownership of a valid