Bell v. Eagle Mountain Saginaw Indep. Sch. Dist.

• Decision Date: 26 March 2021
• Docket Number: Civil Action No. 4:20-cv-01157-P
• Parties: DR. KEITH BELL, Plaintiff, v. EAGLE MOUNTAIN SAGINAW INDEPENDENT SCHOOL DISTRICT, Defendant.
• Court: U.S. District Court — Northern District of Texas

DR. KEITH BELL, Plaintiff,
v.
EAGLE MOUNTAIN SAGINAW INDEPENDENT SCHOOL DISTRICT, Defendant.

Civil Action No. 4:20-cv-01157-P

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS FORT WORTH DIVISION

March 26, 2021

OPINION AND ORDER

Before the Court is Defendant Eagle Mountain-Saginaw Independent School District's ("Eagle Mountain") Motion to Dismiss for Failure to State a Claim ("MTD" or "Motion"). ECF No. 9. Having considered the Motion, Plaintiff Dr. Keith Bell's ("Bell") Response (ECF No. 13), and Eagle Mountain's Reply (ECF No. 15), the Court finds that the Motion should be and hereby is GRANTED.

THE TITLE CARD

Today's bout is only one of the latest in a long string of fights involving Dr. Keith Bell. In one corner stands the underdog, Eagle Mountain—a scrappy, counter-punching independent school district. In the other stands Bell, an infamous slugger known in federal courts around the United States for throwing heavy-handed hooks at non-profits and taxpayer funded school districts in the hopes that they throw in the towel and let him take the purse. In refereeing today's match, the Court finds itself in the frustratingly familiar

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position of penalizing rabbit-punches and kidney shots between parties who, by all reasonable accounts, should not be in the ring at all.

WARMING UP¹

A. Bell challenges Eagle Mountain to a fight.

Bell is a sports psychology and performance consultant who authored ten books and over eighty articles on these subjects. Comp., ECF No. 1, at ¶¶ 7, 9. One of these books is WINNING ISN'T NORMAL, a 72-page work that Bell wrote in 1982 and copyrighted. Id. at ¶ 11. Bell creates, markets, and sells works derived from this book, including posters and t-shirts that display a particular passage known as the "WIN Passage." Id. at ¶ 13. Bell views the WIN Passage as the heart of his work, registered the passage for copyright in 2017, and offers licenses to publish or otherwise use it. Id. at ¶¶ 14, 17. Bell also obtained a federally registered trademark for the phrase "WINNING ISN'T NORMAL," which he uses in connection with several goods and services, including his Winning Isn't Normal series of books, of which WINNING ISN'T NORMAL is part. Id. at ¶ 19.

Eagle Mountain is a public independent school district located in Tarrant County, Texas. Id. at ¶ 22. CTHS Softball and CTHS Color Guard are the official Twitter pages for the Chisholm Trail High School ("CTHS") Softball team and Color Guard, respectively. Id. at ¶¶ 23-24. CTHS is part of Eagle Mountain. Id.

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Both CTHS Softball and Color Guard displayed the WIN Passage on their Twitter pages beginning on December 9, 2017. Id. at ¶¶ 25-26. The pages published the WIN Passage without contacting Bell to request permission to do so. Id. at ¶ 31. Bell discovered the allegedly infringing posts on December 29, 2017, and February 6, 2018, respectively. Id. at ¶¶ 25-26. Bell contacted Eagle Mountain on November 25, 2018, claiming that the WIN Passage was not properly attributed to him. Id. at ¶ 28. Attempting to avoid a pugilistic event, Eagle Mountain promptly removed both posts, informed Bell that the incident would be a "teachable moment," and that Eagle Mountain was developing training to prevent future incidence. Id. at ¶ 29. The parties discussed settlement multiple times between 2018 to 2020 with no success. Id. at ¶ 30.

B. The boxers touch gloves and go to their corners.

Eagle Mountain was ultimately unable to prevent the fight and Bell filed suit against it alleging direct, vicarious, and contributory copyright infringement alongside a request for declaratory judgment. See Comp. Eagle Mountain filed the MTD, Bell responded, and Eagle Mountain replied. ECF Nos. 9, 13, 15. The MTD is now ripe for consideration.

RULES OF THE RING: THE 12(b)(6) STANDARD

Federal Rule of Civil Procedure 8(a) requires a claim for relief to contain "a short and plain statement of the claim showing that the pleader is entitled to relief." FED. R. CIV. P. 8(a)(2). Rule 8 does not require detailed factual allegations, but "it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). If a plaintiff fails to satisfy Rule 8(a), the defendant may file a motion to dismiss the plaintiff's

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claims under Federal Rule of Civil Procedure 12(b)(6) for "failure to state a claim upon which relief may be granted." FED. R. CIV. P. 12(b)(6).

To defeat a motion to dismiss pursuant to Rule 12(b)(6), a plaintiff must plead "enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 663 (citing Twombly, 550 U.S. at 556). "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. (quoting Twombly, 550 U.S. at 556). "Where a complaint pleads facts that are 'merely consistent with' a defendant's liability, it 'stops short of the line between possibility and plausibility of entitlement to relief.'" Id. (quoting Twombly, 550 U.S. at 557).

In reviewing a Rule 12(b)(6) motion, the Court must accept all well-pleaded facts in the complaint as true and view them in the light most favorable to the plaintiff. Sonnier v. State Farm Mut. Auto. Ins. Co., 509 F.3d 673, 675 (5th Cir. 2007). The Court is not bound to accept legal conclusions as true, and only a complaint that states a plausible claim for relief survives a motion to dismiss. Iqbal, 556 U.S. at 678-79. When there are well-pleaded factual allegations, the Court assumes their veracity and then determines whether they plausibly give rise to an entitlement to relief. Id.

"Generally, a court ruling on a 12(b)(6) motion may rely on the complaint, its proper attachments, documents incorporated into the complaint by reference, and matters of which a court may take judicial notice." Randall D. Wolcott, M.D., P.A. v. Sebelius, 635 F.3d 757,

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763 (5th Cir. 2011) (citations omitted); see also Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007). A court may also consider documents that a defendant attaches to a motion to dismiss if they are referred to in the plaintiff's complaint and are central to the plaintiff's claims. Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498-99 (5th Cir. 2000).

THE BELL RINGS, THE BOUT BEGINS

Bell expressly abandoned his declaratory judgment claim, so the Court will not address it. Resp. at ¶ 35. The Court begins with direct copyright infringement.

A. Bell heaves a heavy-handed hook.

To prove copyright infringement, a plaintiff must show (1) "ownership of a valid copyright" and (2) "copying" by the defendant. Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991). "Copyright ownership is shown by proof of originality and copyrightability in the work as a whole and by compliance with applicable statutory formalities." Eng'g Dynamics, Inc. v. Structural Software, Inc., 26 F.3d 1335, 1340 (5th Cir. 1994). One such statutory formality is registration. See 17 U.S.C. § 410(c). "A certificate of registration, if timely obtained, is prima facie evidence both that a copyright is valid and that the registrant owns the copyright." Gen. Universal Sys., Inc. v. Lee, 379 F.3d 131, 141 (5th Cir. 2004) (per curiam).

Once the plaintiff shows ownership of a valid copyright, he must next prove that the defendant unlawfully appropriated protected portions of the copyrighted work. Gates Rubber Co. v. Bando Chem. Indus., Ltd., 9 F.3d 823, 832 (10th Cir. 1993). This question involves two separate inquiries: (1) whether the defendant, as a factual matter, copied

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portions of the plaintiff's program and (2) whether...