Warren v. Guerrero
| Docket Number | 21-CV-11236 (LTS) |
| Decision Date | 31 January 2022 |
| Parties | CAMERON WARREN, Plaintiff, v. QUENDRY GUERRERO, et al., Defendants. |
| Court | U.S. District Court — Southern District of New York |
ORDER TO AMEND
Plaintiff brings this pro se action, invoking the Court's federal question and diversity jurisdiction. 28 U.S.C §§ 1331, 1332. He paid the filing fees for this action. For the reasons set forth below, the Court grants Plaintiff leave to file an amended complaint within 60 days of the date of this order.
The Court must dismiss an in forma pauperis complaint or any portion of the complaint, that is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B); see Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998). The Court must also dismiss a complaint when the Court lacks subject matter jurisdiction. See Fed.R.Civ.P. 12(h)(3).
While the law mandates dismissal on any of these grounds, the court is obliged to construe pro se pleadings liberally Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and interpret them to raise the “strongest [claims] that they suggest, ” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (internal quotation marks and citations omitted) (emphasis in original). But the “special solicitude” in pro se cases, id. at 475 (citation omitted), has its limits - to state a claim, pro se pleadings still must comply with Rule 8 of the Federal Rules of Civil Procedure, which requires a complaint to make a short and plain statement showing that the pleader is entitled to relief.
The Supreme Court has held that, under Rule 8, a complaint must include enough facts to state a claim for relief “that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible if the plaintiff pleads enough factual detail to allow the court to draw the inference that the defendant is liable for the alleged misconduct. In reviewing the complaint, the court must accept all well-pleaded factual allegations as true. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). But it does not have to accept as true “[t]hreadbare recitals of the elements of a cause of action, ” which are essentially just legal conclusions. Twombly, 550 U.S. at 555. After separating legal conclusions from well-pleaded factual allegations, the court must determine whether those facts make it plausible - not merely possible - that the pleader is entitled to relief. Id.
Plaintiff Cameron Warren “maintains residency in the city of San Francisco . . . in the State of California.” (ECF 1 at 5, ¶ 6.) He alleges that he has a contract for modeling with Look Model Agency in California, and that he must “clear” any modeling work with the agency. (Id. at 9 - 10.)[1]
Plaintiff brings this action against dozens of defendants, most of whom are alleged to “maintain[ ] residency” or work in the State of New York. Some or all Defendants were employees of a Tommy Hilfiger store in New York, operated by the PHV Corporation. (Id. at 7, ¶ 10.) On March 24, 2021, “the employer . . . terminated all store employees.” (Id.) An individual named “Alexis Contreras” - who is not named as a defendant in this action or otherwise identified - allegedly took an “iPhone live photo” of Plaintiff that was “of a sexual nature” and “unlawfully distributed” it. (Id.) Plaintiff demanded that Contreras delete it. (Id. at 10, ¶ 15.)
On or about the date Defendants were terminated, their employer, PHV Corporation, proposed a “Non-Disclosure - equivalent - Agreement” (the terms of which are not described) to Defendants, all of whom “accepted the agreement and received payment in return.” (Id.) The amount of payment was determined by job title, and Plaintiff estimates that each Defendant received between $5, 000 and $10, 000, and that the cumulative total for all Defendants was approximately $260, 000. Plaintiff alleges that the payment was intended to “control the aforementioned information, ” by which he seems to mean the iPhone live photo. (Id. at 8.) Plaintiff characterizes this as money Defendants “received for misappropriation of his trade secret.” (Id. at 8, ¶ 11.)
Plaintiff contends that the iPhone live photo qualifies as a trade secret because “his likeness in all media production . . . constitute[s] a pattern.” (Id. at 10, ¶ 14.) Moreover, the iPhone photo displayed sexual content and nudity in areas of his body that were “off limits” and such video or photos of Plaintiff were “not readily accessible in print.” (Id.) Plaintiff argues that Defendants “used the Plaintiff's trade secret for monetary benefit” (id. at 12-13) that is, the payment from the employer. He further argues that Defendants “by agreeing to control information pertaining to the photo . . . leveraged (used) the Plaintiff's trade secret for monetary benefit.” (Id. at 13.)
Plaintiff argues that, while the creator of a photograph (Alex Contreras) would ordinarily have rights under the Copyright Act, because the photograph was “illegally produced” in violation of New York Penal Law § 250.45, Contreras did not own it, and Plaintiff owns it “by default.” (Id. at 11, ¶ 19.)
Plaintiff asserts claims under the Defend Trade Secrets Act of 2016 (DTSA), 18 U.S.C. § 1836 et seq., the Copyright Act, and New York state law against unjust enrichment. He seeks compensatory and punitive damages, and declaratory and injunctive relief. (Id. at 15.) Plaintiff also states that “[t]his Court has authority to remove and join Plaintiff's New York State claims for unjust enrichment against Defendants Guerrero, Sieokhornburi, Hosein, Padilla, Rodriguez, Agurto, and Bowden, pursuant to 28 U.S. Code § 14419(c)(1)(A) & (B).” (ECF 1 at 6, ¶ 6.) It is unclear if Plaintiff seeks to remove, under 28 U.S.C. §§ 1441, 1446, claims currently pending in state court, because Plaintiff does not include any further information about such removal.[2]
The gravamen of Plaintiff's complaint is that Defendants, who worked at a Tommy Hilfiger store, obtained a sexually explicit photograph of Plaintiff taken by someone who is not named as a defendant in this action. Defendants were fired and Defendants' former employer paid each Defendant approximately $5, 000 to $10, 000, in consideration of their signing of “nondisclosure agreements, ” the terms of which are unspecified.
I. Misappropriation of Trade Secrets
The Defend Trade Secrets Act of 2016 (DTSA) expands the provisions of 18 U.S.C. § 1831 et seq. The DTSA provides a federal cause of action to the owner of a trade secret that is misappropriated and is related to a product or service used in, or intended for use in, interstate or foreign commerce. 18 U.S.C. § 1836(b). To state a claim for trade secret misappropriation, “a plaintiff must plausibly allege that (1) it possessed a trade secret, and (2) the defendant misappropriated the trade secret.” Medidata Sols., Inc., v. Veeva Sys. Inc., No. 17-CV-589, 2018 WL 6173349, at *3 (S.D.N.Y. Nov. 26, 2018).
“Trade secret” is defined broadly in the DTSA as “all forms and types of financial, business, scientific, technical, economic, or engineering information.” Island Intell. Prop., LLC v. StoneCastle Asset Mgmt. LLC, 463 F.Supp.3d 490, 499-500 (S.D.N.Y 2020); 18 U.S.C. § 1839 (). “Misappropriation” within the meaning of the DTSA is an unconsented disclosure or use of a trade secret. Tesla Wall Sys., LLC v. Related Companies, L.P., No. 17-CV-5966, 2017 WL 6507110, at *10 (S.D.N.Y. Dec. 18, 2017). A plaintiff claiming misappropriation of trade secrets may show that the defendant gained access to the trade secrets through improper means or “that the defendant improperly used or disclosed trade secrets.” Democratic Nat'l Comm. v. Russian Fed'n, 392 F.Supp.3d 410, 447-48 (S.D.N.Y. 2019) (quoting DSMC, Inc. v. Convera Corp., 479 F.Supp.2d 68, 79 (D.D.C. 2007)).
Plaintiff contends that the iPhone live photo qualifies as a trade secret because “his likeness in all media production . . . constitute[s] a pattern.” (Id. at 10, ¶ 14.) Although the allegations of the complaint suggest that there was an unwanted disclosure of matters that Plaintiff wished to keep private, the complaint does not allege facts that plausibly suggest that, in this context, the photo of Plaintiff qualified as a trade secret. See, e.g., Elsevier Inc. v. Dr. Evidence, LLC, No. 17-CV-5540 (KBF), 2018 WL 557906, at *5 (S.D.N.Y. Jan. 23, 2018) ().
Plaintiff also does not plead facts showing misappropriation within the meaning of the DTSA, both because the photo is not shown to be a trade secret and because he does not allege that Defendants used or disclosed the photo. Rather, Plaintiff alleges that (1) non-defendant Alex Contreras disclosed the photo to Defendants; and (2) Defendants benefited financially from entering into an agreement with their former employer at or about the time of the termination of their employment. (ECF 1 at 7-8.) Neither of these allegations shows that Defendants misappropriated a trade secret. For all of these reasons, Plaintiff fails to state a claim on which relief can be granted under the DTSA.
2. Copyright Claims
“To establish infringementof copyright, ‘two elements must be proven: (1)ownershipof a valid copyright, and (2) copying of constituent elements of the work that are original.'” Arista Records, LLC v. Doe 3 604 F.3d 110, 117 (2d Cir. 2010) (quoting Feist...
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