Jacobs v. Memphis Convention and Visitors Bureau

• Decision Date: 10 May 2010
• Docket Number: No. 2:09-cv-2599,2:09-cv-2599
• Citation: 710 F.Supp.2d 663
• Parties: Jeffrey JACOBS, Plaintiff, v. MEMPHIS CONVENTION AND VISITORS BUREAU et al., Defendants.
• Court: U.S. District Court — Western District of Tennessee

710 F.Supp.2d 663

Jeffrey JACOBS, Plaintiff,

v.MEMPHIS CONVENTION AND VISITORS BUREAU et al., Defendants.

No. 2:09-cv-2599.

United States District Court,

W.D. Tennessee,

Western Division.

May 10, 2010.

Michele Howard-Flynn, The Howard-Flynn Law Group, Memphis, TN, for Plaintiff.

Mildred L. Sabbatini, Paul R. Sciubba, Spicer Rudstrom, PLLC, Kenneth R. Besser, Besser Law Firm, Adam Calhoun Simpson, Richard M. Carter, Martin Tate Morrow and Marston, James R. Newsom, III, Harris Shelton Hanover Walsh, PLLC, Memphis, TN, Amy T. McConnell, Joshua D. Baker, Office of the Attorney General, Nashville, TN, for Defendants.

Don Hassell, Memphis, TN, pro se.

ORDER GRANTING DEFENDANT TENNESSEE DEPARTMENT OF TOURIST DEVELOPMENT'S MOTION TO DISMISS

BERNICE BOUIE DONALD, District Judge.

Before the Court is Defendant Tennessee Department of Tourist Development's ("the Department") Motion to Dismiss filed on February 1, 2010. (D.E. # 54.) Plaintiff Jeffrey Jacobs ("Plaintiff") filed a response in opposition on February 26, 2010. For the reasons stated below, the Department's motion to dismiss is GRANTED.

I. BACKGROUND ¹

Plaintiff, a resident of Memphis, Tennessee, is duly registered with the United States Copyright Office as the holder of copyrights in several professional photographs of various Memphis-area landmarks.² (Pl.'s Compl. ¶¶ 23, 67-68.) Plaintiff in turn granted Defendant Memphis Convention and Visitors Bureau ("Visitors Bureau") limited licenses to certain of his copyrighted photographs. ( Id. ¶ 24.) These licenses were nontransferable and required that a copyright notice and credit line appear on all published uses of the photographs licensed by the Visitors Bureau. ( Id. ¶ 25.) ³

More specifically, on or around January 6, 2003, Plaintiff granted the Visitors Bureau a limited license for use of a copyrighted photograph he created of the Memphis Brooks Museum of Art ("Brooks Museum Photograph"). ( Id. ¶ 27.) The license was limited to a period of twelve months and allowed the Visitors Bureau to use the Brooks Museum Photograph in its 2003/2004 Meeting Planner's Guide and its Tour Operator's Guide but in no other documents or publications. ( Id.) On January 6, 2004, this license expired. ( Id. ¶ 28.)

Notwithstanding the fact that it had no license from Plaintiff allowing it to do so, the Visitors Bureau used the Brooks Museum Photograph in its 2009 Destination Guide. ( Id. ¶ 29.) The Visitors Bureau also reproduced, distributed, and publicly displayed the Brooks Museum Photograph on internet websites and in print media during the years 2007, 2008, and 2009 without a license. ( Id.) Furthermore, the Visitors Bureau made the Brooks Museum Photograph available to the general public for downloading during those years and offered the photograph to the general public for use in e-cards and virtual postcards on the websites www. jubileeltd. biz, www. postcards foryou. com, and www. mypostcards. com. ( Id. ¶¶ 30-31, 33-34.)

Though it likewise possessed no license from Plaintiff for the Brooks Museum Photograph, the Department reproduced, distributed, and publicly displayed the Brooks Museum Photograph on the website www. tnvacation. com. ( Id. ¶ 42.) Additionally, several other named defendants reproduced, distributed, and publicly displayed the Brooks Museum Photograph on websites without possessing a license from Plaintiff. ( See id. ¶¶ 32-33, 35-41.) Neither the Department nor any other defendant had received authorization from Plaintiff to copy, display, or distribute his works during the time periods at issue in this case. ( Id. ¶¶ 68-69.)

On September 14, 2009, Plaintiff filed suit in the United States District Court for the Western District of Tennessee. Plaintiff sues the Department and several other defendants for copyright infringement, contributory copyright infringement, and vicarious copyright infringement. See 17 U.S.C. § 501. Plaintiff also sues the Visitors Bureau for breach of contract under state law. The Department, as an arm of the State of Tennessee, now seeks dismissal of Plaintiff's claims against it on the grounds of sovereign immunity.

II. LEGAL STANDARD

A motion to dismiss a complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure only tests whether a cognizable claim has been pled. Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 436 (6th Cir.1988). To determine whether a motion to dismiss should be granted, the court examines the complaint, which must contain a short and plain statement of the claim showing that the pleader is entitled to relief. See Fed.R.Civ.P. 8(a)(2). It must also provide the defendant with fair notice of the plaintiff's claim as well as the grounds upon which it rests. Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Westlake v. Lucas, 537 F.2d 857, 858 (6th Cir.1976). While the complaint need not present detailed factual allegations, to be cognizable it must provide more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not suffice. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007); see also Scheid, 859 F.2d at 436-37.

Likewise, the complaint must contain factual allegations sufficient "to raise a right to relief above the speculative level[.]" Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (citation omitted). The mere possibility that some set of undisclosed facts will support recovery is insufficient to overcome a 12(b)(6) challenge. Twombly, 550 U.S. at 561, 127 S.Ct. 1955; see also Ashcroft v. Iqbal, --- U.S. ----, 129 S.Ct. 1937, 1950, 173 L.Ed.2d 868 (2009) ("[O]nly a complaint that states a plausible claim for relief survives a motion to dismiss."). On a motion to dismiss under Rule 12(b)(6), the court accepts as true all factual allegations made in the complaint and construes them in the light most favorable to the plaintiff. Neitzke v. Williams, 490 U.S. 319, 326-27, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989);Sensations, Inc. v. City of Grand Rapids, 526 F.3d 291, 295-96 (6th Cir.2008); Windsor v. The Tennessean, 719 F.2d 155, 158 (6th Cir.1983). The court, however, only takes as true well-pled facts, and it will not accept legal conclusions or unwarranted factual inferences. Lewis v. ACB Bus. Servs., Inc., 135 F.3d 389, 405-06 (6th Cir.1998); see Iqbal, 129 S.Ct. at 1949.

III. ANALYSIS

A. Sovereign Immunity and Its Exceptions

The Eleventh Amendment to the United States Constitution reads:

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

U.S. Const. amend. XI. Since its ratification in 1795, the Eleventh Amendment has effectively cloaked states with broad, though not absolute, immunity from suit in federal court. See Nevada v. Hall, 440 U.S. 410, 420 n. 19, 99 S.Ct. 1182, 59 L.Ed.2d 416 (1979). However, "sovereign immunity derives not from the Eleventh Amendment but from the structure of the original Constitution itself." Alden v. Maine, 527 U.S. 706, 728, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999). "The Eleventh Amendment confirmed, rather than established, sovereign immunity as a constitutional principle; it follows that the scope of the States' immunity from suit is demarcated not by the text of the Amendment alone but by fundamental postulates implicit in the constitutional design." Id. at 728-29, 119 S.Ct. 2240. The scope of immunity enjoyed by the states is therefore more extensive than the text of the Eleventh Amendment alone would suggest.⁴

See Fed. Mar. Comm'n v. S.C. State Ports Auth., 535 U.S. 743, 753, 122 S.Ct. 1864, 152 L.Ed.2d 962 (2002) ("[T]he Eleventh Amendment does not define the scope of the States' sovereign immunity; it is but one particular exemplification of that immunity.").

Because sovereign immunity limits the judicial power of the federal judiciary under Article III of the Constitution, absent a valid abrogation of that sovereign immunity by Congress, "a State will ... not be subject to suit in federal court unless it has consented to suit, either expressly or in the plan of the convention." Blatchford v. Native Village of Noatak and Circle Village, 501 U.S. 775, 779, 111 S.Ct. 2578, 115 L.Ed.2d 686 (1991) (internal quotation marks and citation omitted); see also Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 119-20, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984) ("[The Eleventh Amendment] ... deprives a federal court of power to decide certain claims against States that otherwise would be within the scope of Art. III's grant of jurisdiction."). Thus, states are subject to suit by another state in federal court and the United States may sue a state in federal court because "[i]n ratifying the Constitution, the States consented to suits brought by other States or by the Federal Government." ⁵Alden, 527 U.S. at 755, 119 S.Ct. 2240; see Principality of Monaco v. Mississippi, 292 U.S. 313, 328-29, 54 S.Ct. 745, 78 L.Ed. 1282 (1934) (describing jurisdiction over suits between states as "a necessary feature of the formation of a more perfect Union" and over suits by the United States against a state as "inherent in the constitutional plan"); see also Blatchford, 501 U.S. at 781-82, 111 S.Ct. 2578; cf. U.S. Const. art. III, § 2 ("The judicial Power shall extend to all Cases, in Law and Equity, ... [and] to Controversies between two or more States."). The United States Supreme Court has also recently held that "[i]n ratifying the Bankruptcy Clause, the States acquiesced in a subordination of whatever sovereign immunity they might otherwise have asserted in proceedings necessary to effectuate the in rem jurisdiction of the bankruptcy courts." Cent. Virginia Comm. Coll. v. Katz, 546 U.S. 356, 378-79, 126 S.Ct. 990, 163 L.Ed.2d 945 (2006) (italics altered to underlining). Additionally, under the exception created by Ex parte Young, 209 U.S. 123, 28 S.Ct....