Vient v. APG Media, Civil Action No. ELH-18-3862

CourtUnited States District Courts. 4th Circuit. United States District Court (Maryland)
Writing for the CourtEllen Lipton Hollander United States District Judge
PartiesBENJAMIN VIENT, Plaintiff v. APG Media et al. Defendants
Docket NumberCivil Action No. ELH-18-3862
Decision Date24 May 2019

APG Media et al.

Civil Action No. ELH-18-3862


May 24, 2019


Self-represented plaintiff Benjamin Vient filed a copyright infringement suit against defendants APG Media of Chesapeake LLC ("APG") and Operations Inc. ("Ancestry"), alleging violations of the Copyright Act, 17 U.S.C. §§ 101, et seq. ("Act"). ECF 17 (the "Amended Complaint").1 In particular, Vient asserts that defendants, without authorization, reproduced, distributed, and displayed his copyrighted works. See 17 U.S.C. § 106(1), (3), (5). In support of his Amended Complaint, plaintiff filed two exhibits containing screenshots of two websites allegedly displaying his copyrighted works. ECF 17-1; ECF 17-2. He seeks monetary damages as well as injunctive relief. Id. at 2.

APG moved to dismiss the suit (ECF 19), supported by a memorandum (ECF 19-1) (the "Motion to Dismiss") and an exhibit. ECF 19-2. On April 15, 2019, Ancestry also moved to dismiss, incorporating the Motion to Dismiss by reference. ECF 28. I shall refer to both motions collectively as the "Motion to Dismiss."

Six motions filed by Vient are also pending, including a motion to renew (ECF 22), three motions for a more definite statement (ECF 26; ECF 30 ECF 32), a "Motion To Schedule

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Conference and Order" (ECF 34), and a "Motion To Delineate Complaint's Relief." ECF 36. Plaintiff's motion to renew seeks to revive seven earlier motions (ECF 7 to ECF 13), which the Court had dismissed, without prejudice, due to Vient's failure to effectuate service. See ECF 16. These include a motion for preliminary injunction. ECF 11. Additionally, "in an abundance of caution," defendants have filed two additional motions to dismiss. ECF 37; ECF 38.2

No hearing is necessary to resolve the motions. See Local Rule 105.6. For the reasons that follow, I shall grant in part and deny in part the Motion to Dismiss. ECF 19; ECF 28. Specifically, I shall grant the Motion to Dismiss as to the copyright infringement claim regarding "Drawn to the Train" and the related photograph, with leave to amend. And, I shall deny it as to the copyright infringement claim regarding "How long is too long" and the related photograph.

Additionally, I shall grant the motion to renew (ECF 22), but only as to plaintiff's motion for preliminary injunction. ECF 11. I shall deny the motion to renew as to plaintiff's other motions. See ECF 7, ECF 8, ECF 9, ECF 10, ECF 12, and ECF 13. I shall also deny, as moot, ECF 22, ECF 26, ECF 30, ECF 32, ECF 36, ECF 37, and ECF 38. And, I shall deny plaintiff's motion to schedule conference (ECF 34), as premature.

I. Factual Background

Plaintiff asserts that APG and Ancestry have improperly displayed his copyrighted writings and photographs on their websites. ECF 17. First, he alleges that from on or about February 23, 2018, to an unspecified date, defendants displayed his article, "Drawn to the Train," and related

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photography on the webpage of "Cecil Whig." Id. APG appears to own Cecil Whig. Second, Vient alleges that his article, "How long is too long," and a related photograph, appeared in "Cecil Whig" on "Newspapers," a website allegedly owned by Ancestry. See ECF 17-2. Plaintiff does not expressly state when he believes Ancestry displayed his works. However, plaintiff's screenshot of the article suggests that it was displayed on September 20, 2018. ECF 17-2.

Plaintiff claims that he holds copyright registrations TX0008587743 (ECF 19-1 at 2-3) ("Copyright #1"); TX0008587772 (id. at 4-5) ("Copyright #2"); and TX0008589705 (id. at 6-7) ("Copyright #3"). See also ECF 19-2. Copyright #1 covers the collective work entitled "On the Rails by Ben Vient and other Contributions: October 2013 - September 2014." ECF 19-2 at 2-3. Copyright #2 pertains to the collective work entitled "On the Rails by Ben Vient and other Contributions: October 2014 - September 2015." Id. at 4-5. And, Copyright #3 covers the collective work entitled "On the Rails by Ben Vient and other Contributions: October 2015 - July 2016." Id. 6-7.

II. Standard of Review

A defendant may test the legal sufficiency of a complaint by way of a motion to dismiss under Rule 12(b)(6). In re Birmingham, 846 F.3d 88, 92 (4th Cir. 2017); Goines v. Valley Cmty. Servs. Bd., 822 F.3d 159, 165-66 (4th Cir. 2016); McBurney v. Cuccinelli, 616 F.3d 393, 408 (4th Cir. 2010), aff'd sub nom., McBurney v. Young, 569 U.S. 221 (2013); Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). A Rule 12(b)(6) motion constitutes an assertion by a defendant that, even if the facts alleged by a plaintiff are true, the complaint fails as a matter of law "to state a claim upon which relief can be granted."

Whether a complaint states a claim for relief is assessed by reference to the pleading requirements of Fed. R. Civ. P. 8(a)(2). That rule provides that a complaint must contain a "short

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and plain statement of the claim showing that the pleader is entitled to relief." The purpose of the rule is to provide the defendants with "fair notice" of the claims and the "grounds" for entitlement to relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007).

To survive a motion under Fed. R. Civ. P. 12(b)(6), a complaint must contain facts sufficient to "state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570; see Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009) (citation omitted) ("Our decision in Twombly expounded the pleading standard for 'all civil actions' . . . ."); see also Paradise Wire & Cable Defined Benefit Pension Plan v. Weil, 2019 WL 1105179, at *3 (4th Cir. Mar. 11, 2019); Willner v. Dimon, 849 F.3d 93, 112 (4th Cir. 2017). To be sure, a plaintiff need not include "detailed factual allegations" in order to satisfy Rule 8(a)(2). Twombly, 550 U.S. at 555. Moreover, federal pleading rules "do not countenance dismissal of a complaint for imperfect statement of the legal theory supporting the claim asserted." Johnson v. City of Shelby, Miss., 574 U.S. ___, 135 S. Ct. 346, 346 (2014) (per curiam). But, mere "'naked assertions' of wrongdoing" are generally insufficient to state a claim for relief. Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (citation omitted).

In other words, the rule demands more than bald accusations or mere speculation. Twombly, 550 U.S. at 555; see Painter's Mill Grille, LLC v. Brown, 716 F.3d 342, 350 (4th Cir. 2013). If a complaint provides no more than "labels and conclusions" or "a formulaic recitation of the elements of a cause of action," it is insufficient. Twombly, 550 U.S. at 555. "[A]n unadorned, the-defendant-unlawfully-harmed-me accusation" does not state a plausible claim of relief. Iqbal, 556 U.S. at 678. Rather, to satisfy the minimal requirements of Rule 8(a)(2), the complaint must set forth "enough factual matter (taken as true) to suggest" a cognizable cause of action, "even if . . . [the] actual proof of those facts is improbable and . . . recovery is very remote

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and unlikely." Twombly, 550 U.S. at 556 (internal quotation marks omitted).

In reviewing a Rule 12(b)(6) motion, a court "must accept as true all of the factual allegations contained in the complaint" and must "draw all reasonable inferences [from those facts] in favor of the plaintiff." E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011) (citations omitted); see Semenova v. MTA, 845 F.3d 564, 567 (4th Cir. 2017); Houck v. Substitute Tr. Servs., Inc., 791 F.3d 473, 484 (4th Cir. 2015); Kendall v. Balcerzak, 650 F.3d 515, 522 (4th Cir. 2011), cert. denied, 565 U.S. 943 (2011). But, a court is not required to accept legal conclusions drawn from the facts. See Papasan v. Allain, 478 U.S. 265, 286 (1986); Glassman v. Arlington Cty., 628 F.3d 140, 146 (4th Cir. 2010). "A court decides whether [the pleading] standard is met by separating the legal conclusions from the factual allegations, assuming the truth of only the factual allegations, and then determining whether those allegations allow the court to reasonably infer" that the plaintiff is entitled to the legal remedy sought. A Society Without a Name v. Virginia, 655 F.3d 342, 346 (4th. Cir. 2011), cert. denied, 566 U.S. 937 (2012).

Courts ordinarily do not "'resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses'" through a Rule 12(b)(6) motion. Edwards, 178 F.3d at 243 (quoting Republican Party v. Martin, 980 F.2d 943, 952 (4th Cir. 1992)). However, "in the relatively rare circumstances where facts sufficient to rule on an affirmative defense are alleged in the complaint, the defense may be reached by a motion to dismiss filed under Rule 12(b)(6)." Goodman v. Praxair, Inc., 494 F.3d 458, 464 (4th Cir. 2007) (en banc); accord Pressley v. Tupperware Long Term Disability Plan, 553 F.3d 334, 336 (4th Cir. 2009). Because Rule 12(b)(6) "is intended [only] to test the legal adequacy of the complaint," Richmond, Fredericksburg & Potomac R.R. Co. v. Forst, 4 F.3d 244, 250 (4th Cir. 1993), "[t]his principle only applies . . . if all facts necessary

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to the affirmative defense 'clearly appear[ ] on the face of the complaint.'" Goodman, 494 F.3d at 464 (quoting Forst, 4 F.3d at 250) (emphasis added in Goodman ).

"Generally, when a defendant moves to dismiss a complaint under Rule 12(b)(6), courts are limited to considering the sufficiency of allegations set forth in the complaint and the 'documents attached or incorporated into the complaint.'" Zak v. Chelsea Therapeutics Int'l, Ltd., 780 F.3d 597, 606 (4th Cir. 2015) (quoting E.I. du Pont de Nemours & Co., 637 F.3d at 448). The court "may not consider any documents that are outside of the complaint, or not expressly incorporated therein . . . ." Clatterbuck v. City of Charlottesville, 08 F.3d 549, 557 (4th Cir. 2013); see Bosiger v. U.S. Airways, Inc., 510 F.3d 442, 450 (4th Cir. 2007).

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