Diversey v. Schmidly

Decision Date23 December 2013
Docket NumberNo. 13–2058.,13–2058.
Citation738 F.3d 1196
PartiesAndrew DIVERSEY, Plaintiff–Appellant, v. David SCHMIDLY; Richard Holder; Charles Fleddermann; James Koch; Raymond Sanchez; Martha Bedard; Jack Fortner, all individually and in their official capacities, Defendants–Appellees.
CourtU.S. Court of Appeals — Tenth Circuit


Submitted on the briefs: Andrew Diversey, PlaintiffAppellant, Pro Se.

Kimberly N. Bell, Associate University Counsel, The University of New Mexico, Albuquerque, NM, for DefendantsAppellees.

Before MATHESON, Circuit Judge, PORFILIO, and O'BRIEN, Senior Circuit Judges.

O'BRIEN, Senior Circuit Judge.

Andrew Diversey sued several administrators and members of the Board of Regents of the University of New Mexico (UNM) for infringing his copyright to an unpublished dissertation. The district court dismissed Diversey's complaint as untimely under Fed. R. Civ. P. 12(b)(6). Our review requires us to determine when claims of copyright infringement accrue, and, in particular, whether accrual is delayed until a continuing course of infringement ceases. Barring the application of an appropriate tolling principle, a copyright infringement claim must be brought within three years of the date on which the plaintiff becomes aware of an act of infringement or becomes chargeable with knowledge of it. Applying this rule, we affirm in part and reverse in part.


Since we accept all well pleaded facts as true, our factual recitation comes primarily from Diversey's amended complaint. He was a doctor-of-philosophy (Ph.D.) student studying linguistics at the University of New Mexico. His complaint paints a picture of intractable difficulties with the members of his dissertation committee. The members did not provide him with mentorship or feedback on his dissertation drafts, even after he complained to departmental and university administrators, including Charles Fleddermann, UNM's Dean of Graduate Studies. Diversey claims the dissertation committee failed to review the final draft of the dissertation, and says, [t]he dissertation must ... be fully reviewed and evaluated in its final form by the committee members and director before being officially approved and submitted; otherwise it is illegitimate and thus of no academic value.” (R. Vol. I at 68.)

As Diversey continued to attempt to convince UNM officials to correct the deficiencies in the dissertation process, he provided a copy of the draft dissertation to UNM Dissertation Coordinator Doug Weintraub, who volunteered to proofread it. Before Weintraub could do so, Fleddermann allegedly confiscated the draft. On February 7, 2008, UNM Deputy Provost Richard Holder wrote Diversey to advise him the dissertation had been deposited in the Zimmerman Library at UNM. The draft dissertation was also sent to ProQuest, UNM's dissertation publisher. On February 20, 2008, a ProQuest representative confirmed receipt of the draft dissertation. On Diversey's protest, ProQuest returned the manuscript to UNM.

Diversey escalated his complaints: he contacted UNM's President, its Dean of Student Affairs, and several members and officers of UNM's Board of Regents to no avail. Then, on June 16, 2009, Diversey discovered two copies of his dissertation: one in UNM's Zimmerman Library and another in the collection of the Zimmerman Library's Center for Southwest Research. These copies were available to the general public. Diversey wrote each of the appellees, including the Dean of University Libraries, citing his copyright and requesting the return of all copies of his dissertation. On October 5, 2009, UNM's counsel sent Diversey a letter refusing Diversey's request.1

On June 15, 2012, Diversey filed a complaint for copyright infringement. In dismissing the case, the magistrate judge 2 concluded the copyright infringement claims accrued in February 2008 when Diversey was notified of the dissertation's deposit in the Zimmerman Library and became aware it had been sent to ProQuest. Thus, he concluded, the three-year limitation period elapsed by February 2011, and Diversey's June 2012 complaint was not timely. He also rejected Diversey's argument that UNM's ongoing distribution of his work in its libraries was a continuing infringement for which the cause of action did not accrue until the infringement ceased.


Our review of a Fed.R.Civ.P. 12(b)(6) dismissal is de novo. Coll v. First Am. Title Ins. Co., 642 F.3d 876, 886 (10th Cir.2011). We accept the well-pled factual allegations in the complaint as true, “resolve all reasonable inferences in the plaintiff's favor,” Morse v. Regents of the Univ. of Colo., 154 F.3d 1124, 1126–27 (10th Cir.1998), and “ask whether it is plausible that the plaintiff is entitled to relief.” Bixler v. Foster, 596 F.3d 751, 756 (10th Cir.2010) (quotations omitted) (applying the “plausibility” pleading standard articulated in Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), and Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). We also liberally construe Diversey's pro se pleadings. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991). Thus, if we “can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, [we] should do so despite the plaintiff's failure to cite proper legal authority, his confusion of various legal theories, his poor syntax and sentence construction, or his unfamiliarity with pleading requirements.” Id.

We first examine and apply the law relating to the limitation period applicable to Diversey's claims. Then, we examine the two alternative rationales the appellees assert in defense of the dismissal.3

A. Limitation Period for Copyright Infringement Claims

A claim for copyright infringement must be brought “within three years after the claim accrued.” 17 U.S.C. § 507(b). Under the majority view, a claim “for copyright infringement accrues when one has knowledge of a violation or is chargeable with such knowledge.” Roley v. New World Pictures, Ltd., 19 F.3d 479, 481 (9th Cir.1994); see Hotaling v. Church of Jesus Christ of Latter–Day Saints, 118 F.3d 199, 202 (4th Cir.1997). The statute is evenhanded; [i]t does not provide for a waiver of infringing acts within the limitation period if earlier infringements were discovered and not sued upon, nor does it provide for any reach back if an act of infringement occurs within the statutory period.’ Roley, 19 F.3d at 481 (quoting Hoey v. Dexel Sys. Corp., 716 F.Supp. 222, 223 (E.D.Va.1989)); accord Bridgeport Music, Inc. v. Diamond Time, Ltd., 371 F.3d 883, 889 (6th Cir.2004); Hotaling, 118 F.3d at 202;Makedwde Pub. Co. v. Johnson, 37 F.3d 180, 182 (5th Cir.1994); Stone v. Williams, 970 F.2d 1043, 1049–50 (2d Cir.1992).4 In other words, the majority view rejects the notion that a plaintiff can recover for acts of infringement occurring more than three years before the filing of a complaint merely because some related act of infringement occurs within the limitation period.

Diversey relies in part on the minority interpretation of § 507(b)'s limitation period, which applies a “continuing wrong” exception. The most prominent of the cases advancing this minority interpretation is the Seventh Circuit's decision in Taylor v. Meirick, 712 F.2d 1112 (7th Cir.1983). There, the court rescued a plaintiff's contributory infringement claims from the statute of limitations; under ordinary tort principles, it reasoned, the limitation period “does not begin to run on a continuing wrong till the wrong is over and done with.” Id. at 1118;see also United States v. Shabazz, 724 F.2d 1536, 1540 (11th Cir.1984) (applying the then-three-year limitation period for criminal prosecutions of copyright infringements in a comparable fashion); 5Baxter v. Curtis Indus., 201 F.Supp. 100, 101 (N.D.Ohio 1962). Even though some of the plaintiff's claims against the defendant's own copyright infringements may have been barred under § 507(b), the Taylor court concluded the defendant was still contributorily liable for the infringing sales of retailers to whom the defendant wholesaled his infringing copies, as long as those sales occurred before the limitation period elapsed. See Taylor, 712 F.2d at 1118–19.

The minority view is not compelling. First, the statute itself says nothing to support a special limitation rule for “continuing wrongs.” See17 U.S.C. § 507(b); Roley, 19 F.3d at 481 (Section 507(b) is clear on its face.”). Second, although the minority view seems intended to ensure copyright infringers do not escape liability when their infringing acts are obfuscated by the stream of commerce, the majority accrual rule and tolling principles adequately protect copyright owners' rights in such situations. The limitation period never begins to run until the plaintiff knows or has reason to know of the infringement. Roley, 19 F.3d at 481. Moreover, when an infringer's actions are calculated to deceive the plaintiff, the accrual may be tolled even further. See Taylor, 712 F.2d at 1118 (observing a copyright infringement plaintiff is entitled to tolling when the defendant's actions are “calculated to obstruct any inquiry [plaintiff] might have made”). Indeed, this tolling principle alone would have been sufficient to allow the Taylor plaintiff relief from the statute of limitations. Id. at 1119 ([E]ither of the tolling principles discussed earlier would allow [plaintiff] to collect damages for acts of infringement more than three years in the past, at least if he acted promptly once he discovered them....”). Accordingly, we reject as unnecessary the “continuing wrong” doctrine in the copyright infringement context and adopt the majority view.

B. Copying and Distribution Claims

Diversey contends the district court erred in concluding his claims were barred under the three-year limitation period. In particular, he argues the judge erred by “failing to recognize separate ... accrual dates for each...

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