Fisher v. United Feature Syndicate, Inc., 96-D-1895.

• Decision Date: 04 March 1999
• Docket Number: No. 96-D-1895.,96-D-1895.
• Citation: 37 F.Supp.2d 1213
• Parties: Philip Condon FISHER, Plaintiff, v. UNITED FEATURE SYNDICATE, INC. (a Scripps Howard Company), et al., Defendants.
• Court: U.S. District Court — District of Colorado

37 F.Supp.2d 1213

Philip Condon FISHER, Plaintiff, v. UNITED FEATURE SYNDICATE, INC. (a Scripps Howard Company), et al., Defendants.

No. 96-D-1895.

United States District Court, D. Colorado.

March 4, 1999.

Philip Condon Fisher, Golden, CO, pro se.

Marc D. Flink, Todd L. Lundy, Peter John Korneffel, Jr., Timothy R. Beyer, Baker & Hostetler, Denver, CO, for United Feature Syndicate, Inc., United Media & Newspaper Enterprise Ass'n, Denver Pub. Co., Rocky Mountain News, E.W. Scripps Co., Charles Schultz, Lee Mendelson, Bill Melendez, Kartes Video Communications, Barr Arthur Productions, Inc., News America Pub., Inc., TV Guide Magazine, Kellogg Co., Capital Cities/ABC, Inc., King Feature Syndicate, Inc., Cowles Syndicate, Inc., Advance Publications Inc., SI Holdings, Inc., Scholastic Book Services.

Eileen R. Lerman, Lerman & Associates, Denver, CO, for Wholesale Warehousing of Canada, Cyclone Inc., Cavalieri Cyclone.

Thomas B. Kelley, Steven D. Zansberg, Faerge & Benson, Denver, CO, for CBS, Inc., Turner Broadcasting System, Inc., Walt Disney Co., Buena Vista Home Video.

Charles F. Luce, Jr., Moye, Giles, O'Keefe, Vermeire & Gorrell, Denver, CO, for Metropolitan Life Ins.

Barbara W. Gall, Richard Norman Baer, Sherman & Howard, Denver, CO, for TCI of Colorado.

Todd P. Blakely, Sheridan, Ross, P.C., Denver, CO, for General Elcetric Company/RCA/TCE, Montgomery Ward & Co., Kacey Fine Furniture, Fingerhut Corp., Soundtrack, Best Buy Co. Marc D. Flink, Todd L. Lundy, Baker & Hostetler, Denver, CO, Jon Arnold Pfeiffer, Bryan Cave LLP, Santa Monica, CA, for Universal Press Syndicate, Inc.

William James Barber, City Attorney's Office, Arvada, CO, John O. Rauch, Rauch & Van Voorhis, LLC, Denver, CO, for Sears, Roebuck and Co.

Kim B. Childs, John R. Mann., Kennedy & Christopher, P.C., Denver, CO, for Tyson Foods, Inc.

ORDER AFFIRMING AND ADOPTING MAGISTRATE JUDGE'S RECOMMENDATION

DANIEL, District Judge.

This matter is before the Court on Plaintiff's pro se copyright infringement complaint pursuant to the Federal Copyright Act, 17 U.S.C. § 101 et seq. The matter was referred to Magistrate Judge Donald E. Abram for a Recommendation, which was issued on June 4, 1997 and is incorporated herein by reference. See 28 U.S.C. § 636(b), Fed. R.Civ.P. 72, D.C.COLO.LR. 72.4. In the Recommendation, Magistrate Judge Abram recommends that Defendants' motions and responsive pleadings be granted to the extent that they seek dismissal of Plaintiff's claims, and that the case be dismissed. Recommendation, at 22-26. On June 23, 1997, Plaintiff filed a timely Objection, which necessitates a de novo determination as to those specified proposed findings or recommendations to which objection is made since the nature of the matter is dispositive. Fed.R.Civ.P. 72(b); 28 U.S.C. § 636(b)(1).

I. Standard of Review

I first address Plaintiff's objections regarding the Magistrate Judge's application of the correct standard of review for Plaintiff's various claims and motions. Plaintiff initially challenges the Magistrate Judge's application of the standard of review for motions to dismiss. Objection, at 2-3. In ruling on a motion to dismiss, I "`must accept all the well-pleaded allegations as true and must construe them in the light most favorable to the plaintiff.'" David v. City and County of Denver, 101 F.3d 1344, 1352 (10th Cir.1996) (quoting Gagan v. Norton, 35 F.3d 1473, 1474 n. 1 (10th Cir.1994)). "A complaint may be dismissed pursuant to Fed.R.Civ.P. 12(b)(6) only `if the plaintiff can prove no set of facts to support a claim for relief.'" Id. (quoting Jojola v. Chavez, 55 F.3d 488, 490 (10th Cir.1995)). Plaintiff claims that the Magistrate Judge did not construe all factual allegations in his favor. Objection, at 2. Yet Plaintiff provides no evidentiary support for this claim other than conclusory statements. After reviewing the Recommendation and the record in this case, I conclude that the Magistrate Judge properly applied the correct standard of review.

Plaintiff also requests that this Court grant his motions for summary judgment. Objection at 3. Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 55(c); accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The moving party bears the initial burden of proof showing that there is an absence of any issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In copyright cases, only after the moving party has properly supported his summary judgment motion will the burden shift to the non-moving party to rebut with significant evidence. See McRae v. Smith, 968 F.Supp. 559, 561 (D.Colo.1997). After reviewing the record in its entirety and for the reasons discussed below, I conclude that Plaintiff's summary judgment motion is without merit and must be denied.

II. Discussion

Plaintiff's objections focus on Magistrate Judge Abram's dismissal of his claims as a pro se litigant. Since Magistrate Judge Abram based his findings on both procedural and substantive grounds, I will similarly address Plaintiff's objections to the Recommendation first as to procedure and then as to substance.

A. Rule 8

Plaintiff argues that Magistrate Abram failed to apply the correct standard of review for a pro se litigant's pleadings. Objection, at 2. Plaintiff claims that the Magistrate Judge's negative characterizations of his Complaint do not comport with the liberal construction rule that applies to pro se litigants. Id. at 2. Plaintiff further argues that the Complaint is brief as long as the supplements are excluded. Id. at 4.

Pleadings should contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R.Civ.P 8(a)(2). Failure to comply with Rule 8(a)(2) may result in dismissal. See Carpenter v. Williams, 86 F.3d 1015, 1016 (10th Cir.1996). Courts, however, should liberally construe pleadings prepared by a pro se litigant. Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972); Gagan v. Norton, 35 F.3d 1473, 1474 n. 1 (10th Cir.1994), cert. denied, 513 U.S. 1183, 115 S.Ct. 1175, 130 L.Ed.2d 1128 (1995). Nevertheless, the Court cannot "assume the role of advocate for the pro se litigant." Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991). With the supplements, I find that Plaintiff's Amended Complaint is approximately 140 pages long and contains 43 often repetitive, rambling paragraphs and conclusory allegations. Although Plaintiff is a pro se litigant, I am unwilling to liberally construe Plaintiff's pleadings to the point of excluding Rule 8's clear mandate. After reviewing the Complaint, I concur with the Magistrate Judge's findings that the Plaintiff has failed to comply with the requirements of Rule 8(a)(2).

B. Statute of Limitations:

In challenging the Magistrate Judge's recommendation regarding the statute of limitations, Plaintiff first claims that Defendants' misleading conduct of repeated infringement violations delayed Plaintiff from filing suit before the statute of limitations expired. Objection, at 4. A cause of action for copyright infringement under section 507(b) of the Copyright Act 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). Plaintiff's relies on Herald Square Music Co. v. Living Music, Inc., 205 U.S.P.Q. 1241, 1978 WL 984 (S.D.N.Y.1978), to support his claim that Defendants' conduct should estop them from raising the statute of limitations defense. Objection, at 4. Plaintiff's reliance on Herald Music is misplaced. In Herald Music, the court held that the defendants were estopped from asserting a statute of limitations defense because they had misled the plaintiff into believing litigation was unnecessary, resulting in expiration of statute of limitations. Herald Music, 205 U.S.P.Q. at 1243, 1978 WL 984. In contrast, Plaintiff here argues that it was the inundation of alleged violations that delayed him. Objection, at 4-5. Plaintiff provides no explanation or evidence, other than conclusory statements, as to how Defendant's allegedly repeated violations misled and discouraged him from asserting his rights in court. Therefore, I find Defendants' alleged conduct is not misleading behavior for purposes of estopping the Defendants' from asserting their statute of limitations defense.

Plaintiff also seeks to avoid the statute of limitations deficiencies by alleging a "continuing wrong" exception as adopted by the Seventh Circuit in Taylor v. Meirick, 712 F.2d 1112 (7th Cir.1983). Section 507(b) of the Copyright Act states that "[n]o civil action shall be maintained under the provisions of this title unless it is commenced within three years after the claim accrued." 17 U.S.C. § 507(b). Plaintiff's proposed exception would allow him to recover damages for all infringements more than three years in the past as long as the infringement is continuing and the last infringement occurred within three years prior to initiating suit. Taylor, 712 F.2d at 1118-19. Several Circuits, however, have held that section 507(b) bars recovery of damages on any claim accruing more than three years prior to filing suit. Roley v. New World Pictures, Ltd., 19 F.3d 479, 481 (9th Cir.1994); Stone v. Williams, 970 F.2d 1043, 1049-50 (2d Cir. 1992), cert. denied, 508 U.S. 906, 113 S.Ct. 2331, 124 L.Ed.2d 243 (1993); Hoste v. Radio Corp. of America, 654 F.2d 11, 11-12 (6th Cir.1981); see also MAI Basic Four, Inc., v. Basis, Inc., 962 F.2d 978, 987 n. 9 (10th Cir.1992) (recognizing a division among the Circuits over interpretations of section 507(b)). I am persuaded by this latter view and decline to...