Festa v. Local 3 Intern. Broth. of Elec. Wkrs

4 Citing briefs

  1. Boarding School Review, LLC v. Delta Career Education Corporation et al

    MEMORANDUM OF LAW in Opposition re: 17 MOTION to Dismiss the Counterclaim of defendants / Counterclaim plaintiffs.. Document

    Filed August 27, 2012

    Additionally, because the YouTube Terms of Service are not included in pleadings, considering such terms automatically converts this motion to a summary judgment motion. Festa v. Local 3 Int'l Bhd. of Elec. Workers, 905 F.2d 35, 38 (2d Cir. 1990) (court’s consideration of affidavits filed with motion to dismiss for lack of subject matter jurisdiction converted Fed. R. Civ. P. 12(b)(6) motion to motion for summary judgment). Under the summary judgment standard, there is a material issue of fact as to whether the YouTube Terms of Service (a) grant a license to BSR to the videos made available on the YouTube website; (b) the scope of any alleged license and (c) whether BSR’s use of the videos on its commercial website is expressly prohibited by the Case 1:11-cv-08921-DAB Document 19 Filed 08/27/12 Page 22 of 24     18    YouTube Terms of Service.2 Thus, the Court cannot dismiss or enter judgment on the Copyright claim on this basis.

  2. Madison Square Garden, L.P. v. National Hockey League et al

    MEMORANDUM OF LAW in Opposition re: 63 MOTION to Dismiss or in the Alternative for Partial Summary Judgment.. Document

    Filed July 17, 2008

    “‘The court’s function . . . is not to weigh the evidence that might be presented at trial but merely to determine whether the complaint itself is legally sufficient.’” Condit v. Dunne, No. 06 Civ. 13126, 2008 WL 2676306, at *2 (S.D.N.Y. July 8, 2008) (quoting Festa v. Local 3 Int’l Bhd. of Elec. Workers, 905 F.2d 35, 37 (2d Cir. 1990)) (ellipsis in original). Accordingly, the complaint “need only ‘give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.

  3. Cable Line, Inc. et al v. Comcast Cable Communications of Pennsylvania, Inc. et al

    REPLY BRIEF re MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM

    Filed December 6, 2016

    *3 “The court's function on a Rule 12(b)(6) motion is not to weigh the evidence that might be presented at a trial but merely to determine whether the complaint itself is legally sufficient.” Festa v. Local 3 International Brotherhood of Electrical Workers, 905 F.2d 35, 37 (2d Cir.1990). Thus, a motion to dismiss must be denied “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.”

  4. Watson v. Estrada et al

    MEMORANDUM in Opposition re Motion to Dismiss for Failure to State a Claim pursuant to Fed. R. Civ. P. 12

    Filed June 10, 2015

    To this end, the court's role in deciding a Rule 12(b)(6) motion is "not to weigh the evidence that might be presented at a trial but merely to determine whether the complaint itself is legally sufficient." Festa v. Local 3 Int'l Bhd. of Elec. Workers, 905 F.2d 35, 37 (2d Cir.1990). It is well settled that "[w]hen a motion to dismiss is brought prior to an answer and discovery, a court is loath to grant the motion."