TC Reiner v. Canale, Case No. 16–11728

• Court: United States District Courts. 6th Circuit. United States District Court (Eastern District of Michigan)
• Writing for the Court: Paul D. Borman, United States District Judge
• Citation: 301 F.Supp.3d 727
• Docket Number: Case No. 16–11728
• Decision Date: 15 March 2018
• Parties: TC REINER, Plaintiff, v. Thomas CANALE, Defendant.

301 F.Supp.3d 727

TC REINER, Plaintiff,
v.
Thomas CANALE, Defendant.

Case No. 16–11728

United States District Court, E.D. Michigan, Southern Division.

Signed March 15, 2018

301 F.Supp.3d 729

Francyne B. Stacey, Hooper Hathaway, P.C., Ann Arbor, MI, for Plaintiff.

Jamie H. Nisidis, Braun Kendrick Finkbeiner P.L.C., Saginaw, MI, for Defendant.

OPINION AND ORDER GRANTING DEFENDANT'S MOTION FOR JUDGMENT ON THE PLEADINGS

Paul D. Borman, United States District Judge

301 F.Supp.3d 730

Plaintiff TC Reiner first brought this copyright suit, alleging both infringement and wrongful removal of copyright information, against Saginaw Valley State University ("SVSU "), the Saginaw Valley State University Board of Control ("SVSU Board "), a former SVSU student, and an initially unnamed SVSU professor. The first three of those defendants have since been dismissed, and the professor has since been identified as Defendant Thomas Canale ("Defendant ").

Now before the Court is Defendant Canale's Motion for Judgment on the Pleadings. Defendant advances two potential grounds for dismissal of this action: (1) untimeliness, because he was not named as a defendant until after the limitations period had expired, and the amended pleading adding him as a party does not relate back to the date of the earlier complaint; and (2) immunity, on the assertion that Defendant has qualified immunity in his individual capacity, and Eleventh Amendment immunity in his official capacity. Both arguments have merit, and the Court will therefore grant Defendant's Motion for Judgment on the Pleadings.

I. BACKGROUND

A. Factual Allegations

Plaintiff is a professional fashion and fine-art photographer. (ECF No. 32, 2d Am. Compl. ¶ 3.) He is the creator of the work at issue in this lawsuit (the "Work "): a photograph of a seated woman entitled Nikki. (2d Am. Compl. ¶ 11; Ex. 1, Photograph entitled "Nikki ".) He also owns a copyright in the Work, which was registered in 2004. (2d Am. Compl. ¶ 12–13; Ex. 2, Copyright Catalog Entry.)

Defendant is a Professor of Art at SVSU, and held that position during all times relevant to this lawsuit. (2d Am. Compl. ¶ 4; ECF No. 39, Answer ¶ 4.)

On or around April 28, 2014, Plaintiff learned that the Work had been included in materials distributed by SVSU to its students. (Am. Compl. ¶ 15.) Plaintiff alleges that Defendant copied and distributed the Work to his students, and alleges on information and belief that at least one student used the Work in designing an advertisement for a domestic violence shelter as part of a class assignment.¹ (2d Am. Compl. ¶¶ 5, 16; Ex. 3, Advertisement.) Plaintiff further alleges that Defendant encourages students to use works created in class or for class assignments as a way of promoting themselves to potential employers, and that at least the one student (but possibly others) included the work along among materials provided to potential employers. (2d Am. Compl. ¶¶ 6, 18.)

Defendant did not have or obtain a license or permission to use the Work. (2d Am. Compl. ¶ 20.) At no point were students advised to seek permission from Plaintiff to use the Work, and the Work as provided to students did not contain copyright information. (2d Am. Compl. ¶¶ 19, 26.) While SVSU maintains policies regarding the use of copyrighted material, Plaintiff alleges, those policies do not require strict adherence, nor do they require instructors to educate their students on either the copyright policies themselves or

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on applicable copyright laws and regulations. (2d Am. Compl. ¶ 21; Ex. 4, Copyright Policy.)

In a letter dated August 18, 2015, Plaintiff (through an attorney) notified SVSU that its use of the Work violated federal copyright law, and demanded that SVSU cease and desist from further use of the Work. SVSU denied violating any copyright law. (Am. Compl. ¶¶ 22–23.)

Plaintiff alleges that "[b]y failing to obtain a license for the Work or other works² by [Plaintiff] and allowing students access to and use of [such works], both inside and outside of the school setting, Defendant has profited from the name, reputation and signature image of [Plaintiff]." (2d Am. Compl. ¶ 27.) Plaintiff alleges that he "has sustained and will continue to sustain substantial injury, loss and damage to his ownership rights in The Work." (2d Am. Compl. ¶ 28.)

B. Relevant Procedural History

Plaintiff first filed suit on May 16, 2016 against SVSU and the SVSU Board of Control ("SVSU Board ") only. (ECF No. 1, Compl.) The original Complaint asserted two claims for copyright infringement under the Copyright Act, 17 U.S.C. §§ 106 and 501. (Id. ¶¶ 27–42.)

The following November, Magistrate Judge Patricia T. Morris granted Plaintiff leave to amend his complaint, and Plaintiff added two defendants to the action: the student whom Plaintiff alleges used the Work in a class assignment, and the professor who taught the class. (ECF No. 16, Am. Compl.) In the Amended Complaint, the professor—now identified as Defendant Canale—was referred to as "Jane Doe." (Am. Compl. at 2, Pg ID 193.)

A few days after Plaintiff filed his Amended Complaint, SVSU and SVSU Board moved to dismiss the Amended Complaint (to the extent that it asserted claims against SVSU and the SVSU Board) on Eleventh Amendment grounds. The parties fully briefed that motion.³ (ECF Nos. 17, 19, 20.) At the May 19, 2017 hearing on the Motion, however, the parties agreed on the record that SVSU and SVSU Board should be dismissed as Defendants, and the Court entered an Order dismissing SVSU and SVSU Board from the action the same day. (ECF No. 29.)

On July 7, 2017, Plaintiff filed his Second Amended Complaint, which is pled against Defendant Canale only, and which is now the operative complaint in this case. (ECF No. 32, 2d Am. Compl.) The Second Amended Complaint asserts two claims: one claim of copyright infringement under the Copyright Act, 17 U.S.C. §§ 106 and 501 (Count I); and one claim of wrongful removal of copyright information under the Digital Millennium Copyright Act, 17 U.S.C. § 1202 (Count II). (2d Am. Compl. ¶¶ 29–44.) Four days later, Plaintiff stipulated to dismiss the student defendant, leaving Canale as the sole defendant in the action. (ECF No. 34.)

On September 15, 2017, Defendant filed the instant Motion for Judgment on the Pleadings. (ECF No. 40, Pl.'s Mot.) Plaintiff did not file a timely response, and sought the Court's leave on October 27 to

301 F.Supp.3d 732

file a late response. (ECF No. 43.) The Court granted Plaintiff leave to file a late response (ECF No. 47), which Plaintiff did on November 7 (ECF No. 48, Pl.'s Resp.). Defendant filed a Reply the following day. (ECF No. 49, Def.'s Reply.)

The Court conducted a hearing on Defendant's Motion for Judgment on the Pleadings on Wednesday, November 22, 2017, and now issues the following ruling.

II. STANDARD OF REVIEW

"Motions for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c) are analyzed under the same de novo standard as motions to dismiss pursuant to Rule 12(b)(6)." Sensations, Inc. v. City of Grand Rapids , 526 F.3d 291, 295 (6th Cir. 2008) (citing Penny/Ohlmann/Nieman, Inc. v. Miami Valley Pension Corp. , 399 F.3d 692, 697 (6th Cir. 2005) ). "[T]he legal standards for adjudicating Rule 12(b)(6) and Rule 12(c) motions are the same...." Lindsay v. Yates , 498 F.3d 434, 437 n.5 (6th Cir. 2007).

Thus, Rule 12(c), like Rule 12(b)(6), allows for the dismissal of a case where the complaint fails to state a claim upon which relief can be granted. When reviewing a motion to dismiss under Rule 12(b)(6), a court must "construe the complaint in the light most favorable to the plaintiff, accept its allegations as true, and draw all reasonable inferences in favor of the plaintiff." Handy–Clay v. City of Memphis , 695 F.3d 531, 538 (6th Cir. 2012).

To state a claim, a complaint must provide a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). "[T]he complaint ‘does not need detailed factual allegations’ but should identify ‘more than labels and conclusions.’ " Casias v. Wal–Mart Stores, Inc. , 695 F.3d 428, 435 (6th Cir. 2012) (quoting Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). The court "need not accept as true a legal conclusion couched as a factual allegation, or an unwarranted factual inference." Handy–Clay , 695 F.3d at 539 (internal citations and quotation marks omitted).

In other words, a plaintiff must provide more than "formulaic recitation of the elements of a cause of action" and his or her "[f]actual allegations must be enough to raise a right to relief above the speculative level." Twombly , 550 U.S. at 555–56, 127 S.Ct. 1955. To survive a Rule 12(c) motion for judgment on the pleadings or a Rule 12(b)(6) motion to dismiss for failure to state a claim, "a litigant must allege enough facts to make it plausible that the defendant bears legal liability. The facts cannot...