Whistleblower Prods., LLC v. St8cked Media LLC

• Decision Date: 15 July 2019
• Docket Number: 18-CV-5258 (PKC) (CLP)
• Parties: WHISTLEBLOWER PRODUCTIONS, LLC, KATHLEEN COLE, FRANK VETRO, JEFFREY MONSOUR, MICHAEL CAREY, MARY ELLEN BELDING, and WALTER WENGER, Plaintiffs, v. ST8CKED MEDIA LLC, MICHAEL REICHENBERG, and SOLA ADENEKAN, Defendants.
• Court: U.S. District Court — Eastern District of New York

WHISTLEBLOWER PRODUCTIONS, LLC,

KATHLEEN COLE, FRANK VETRO,JEFFREY MONSOUR, MICHAEL CAREY,MARY ELLEN BELDING,and WALTER WENGER, Plaintiffs, v. ST8CKED MEDIA LLC, MICHAEL REICHENBERG,and SOLA ADENEKAN, Defendants.

18-CV-5258 (PKC) (CLP)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

July 15, 2019

MEMORANDUM & ORDER

PAMELA K. CHEN, United States District Judge:

Plaintiffs Whistleblower Productions, LLC, Kathleen Cole, Frank Vetro, Jeffrey Monsour, Michael Carey, Mary Ellen Belding, and Walter Wenger (collectively, "Plaintiffs") bring this action against Defendants St8cked Media LLC, Michael Reichenberg, and Sola Adenekan (collectively, "Defendants"), advancing claims for declaratory relief, copyright infringement, and various causes of action under state law. Pending before the Court is Defendants' motion to dismiss, which the Court grants for the reasons set forth below.

BACKGROUND

Plaintiff Kathleen Cole is a businesswoman whose work involves the installment and maintenance of equipment for public schools and gymnasiums. (Amended Complaint ("Am. Compl."), Dkt. 17, ¶ 20.)¹ Around 2009, Cole "realized that the vast majority of schools" in NewYork State "were neither maintaining their safety devices nor training their staff in the safe operation of the doors and safety devices." (Id. ¶ 23.) Cole "report[ed] her findings to the State Legislature, Governor's Office, Attorney General's Office, the Mayor of New York City, the New York Department of Labor, the Suffolk and Nassau County District Attorneys' Offices and other law enforcement agencies." (Id. ¶ 24.) As a result, Cole has suffered "[y]ears of relentless, coordinated retaliation." (Id. ¶ 25.)

Inspired to create a documentary focused on the experiences of whistleblowers like her, Cole began to reach out to members of the film industry in 2013 and went on to form Plaintiff Whistleblower Productions, LLC. (Id. ¶¶ 26-27, 42, 44.) In December of 2017, Cole hired Defendants Michael Reichenberg and Sola Adenekan—both members of Defendant St8cked Media LLC (id. ¶¶ 8-10)—to serve as editors for the documentary (id. ¶ 37). Reichenberg and Adenekan agreed not to charge Cole for their work, but requested that they be compensated should the documentary start generating revenue. (Id.) Cole, Reichenberg, and Adenekan also came to an understanding that (1) they would first make a short version of the documentary, and then use that version to attain the funding needed to make a full-length version (id.); and (2) that all three of them would share equal credit as filmmakers and co-producers of the documentary (id. ¶ 41).

Cole financed the production of a short version of the documentary, provided critical background knowledge on issues of government corruption, and offered guidance during interviews and the editing process. (Id. ¶ 43.) Plaintiffs Vetro, Monsour, Carey, Belding, and Wenger also participated in the production of the short version (id. ¶¶ 42, 50, 51), and each of them—along with Cole—signed an appearance release for their participation in the documentary(id. ¶ 42). Initially drafted by Reichenberg and Adenekan, this agreement was revised by Cole to clarify that Plaintiffs were not releasing their rights to their individual stories and were entitled to notification and compensation should any derivative work be made from the documentary. (Id. ¶¶ 42, 65.) The short version of the documentary was completed on or around July 20, 2018. (Id. ¶ 55.) At a summit held that same month, Cole was recognized as the creator and executive producer of the documentary and Plaintiff Whistleblower Productions, LLC and Defendant St8cked Media LLC were recognized as co-producers. (Id. ¶ 15.)

On or around August 25, 2018, Cole discovered that Reichenberg and Adenekan had signed an agreement with Phiphen Pictures to develop a movie or television series based on the short version of the documentary, and that she and the other Plaintiffs no longer had access to the documentary, in violation of their contractual rights. (Id. ¶¶ 42, 62-63.)

Plaintiffs commenced this action on September 19, 2018 (Dkt. 1) and filed an amended complaint on January 2, 2019 (Dkt. 17). Plaintiffs, who did not have access to the documentary at the time they filed the amended complaint (Am. Compl., ¶ 62), have been unable to submit the documentary and interview footage for copyright registration because they lack physical access to these works (id. ¶ 76). On January 24, 2019, the Court granted Defendants leave to file a motion to dismiss, which is currently before the Court. (Dkt. 23.)

DISCUSSION

Defendants move to dismiss for lack of subject matter jurisdiction and failure to state a claim. (See Defendants' Memorandum of Law in Support of Motion to Dismiss ("Defs.' Br."), Dkt. 24, at ECF² 15-20.) "When presented with both a motion under [Fed. R. Civ. P.] 12(b)(1) todismiss for lack of subject matter jurisdiction and a motion under [Fed. R. Civ. P.] 12(b)(6) to dismiss for failure to state a claim upon which relief can be granted," the Court must first decide whether it "has the subject matter jurisdiction necessary to consider the merits of the action." Zapotocky v. CIT Bank, N.A., 587 B.R. 589, 592 (S.D.N.Y. 2018) (citing Rhulen Agency, Inc. v. Ala. Ins. Guar. Ass'n, 896 F.2d 674, 678 (2d Cir. 1990)).

On a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), the Court must "accept[] all material facts alleged in the complaint as true and draw[] all reasonable inferences in the plaintiff's favor." McGowan v. United States, 825 F.3d 118, 125 (2d Cir. 2016) (quotation omitted). "The plaintiff bears the burden of proving subject matter jurisdiction by a preponderance of the evidence." Aurecchione v. Schoolman Transp. Sys., Inc., 426 F.3d 635, 638 (2d Cir. 2005). "After construing all ambiguities and drawing all inferences in a plaintiff's favor, a district court may properly dismiss a case for lack of subject matter jurisdiction under Rule 12(b)(1) if it lacks the statutory or constitutional power to adjudicate it." Id. (quotations, brackets, and citation omitted).

To survive a motion to dismiss pursuant to Rule 12(b)(6), "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); Hogan v. Fischer, 738 F.3d 509, 514 (2d Cir. 2013). A "claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft, 556 U.S. at 678; Hogan, 738 F.3d at 514. The "plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Ashcroft, 556 U.S. at 678 (citation omitted); Pension Benefit Guar. Corp. ex rel. St. Vincent Catholic Med. Ctrs. Ret. Plan v. MorganStanley Inv. Mgmt., 712 F.3d 705, 729-30 (2d Cir. 2013). Determining whether a complaint states a plausible claim for relief is "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Ashcroft, 556 U.S. at 679.

In addressing the sufficiency of a complaint, "the tenet that a court must accept as true all of the allegations in a complaint is inapplicable to legal conclusions," id., 556 U.S. at 678; see Pension Benefit Guar. Corp., 712 F.3d at 717 ("Although for the purposes of a motion to dismiss we must take all of the factual allegations in the complaint as true, we are not bound to accept as true a legal conclusion couched as a factual allegation." (quotations omitted)). "'While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.'" Pension Benefit Guar. Corp., 712 F.3d at 717 (quoting Twombly, 550 U.S. at 679). For purposes of a motion to dismiss, "[a] complaint is also deemed to include any written instrument attached to it as an exhibit, materials incorporated by reference, and documents that, although not incorporated by reference, are integral to the complaint." Sierra Club v. Con-Strux, LLC, 911 F.3d 85, 89 (2d Cir. 2018) (quotations omitted).

I. Declaratory Judgment Act

Plaintiffs style their first cause of action as a claim for declaratory relief under the Declaratory Judgment Act. (Am. Compl., ¶¶ 74-82.) The Declaratory Judgment Act provides that "any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought." 28 U.S.C. § 2201(a). "It is well established, however, that the Declaratory Judgment Act does not provide an independent cause of action." Garcia v. Nat'l Contractors Ins. Co., Inc., No. 15-CV-1332 (CBA) (MDG), 2015 WL 7016968, at *1 (E.D.N.Y. Nov. 12, 2015). As the Second Circuit has explained,

a request for relief in the form of a declaratory judgment does not by itself establish a case or controversy involving the adjudication of rights. In fact, the statute authorizing the declaratory judgment remedy explicitly incorporates the Article III case or controversy limitation. The Declaratory Judgment Act does not expand jurisdiction. Nor does it provide an independent cause of action. Its operation is procedural only—to provide a form of relief previously unavailable. Therefore, a court may only enter a declaratory judgment in favor of a party who has a substantive claim of right to such relief.

In re Joint E. & S. Dist. Asbestos Litig., 14 F.3d 726, 731 (2d Cir. 1993) (citations omitted).

Accordingly, to the extent Plaintiffs advance an independent claim under the Declaratory Judgment Act, that claim is dismissed. See Khanom v. Kerry, 37 F. Supp. 3d 567, 575 (E.D.N.Y. 2014) ("Finally, this case does not 'arise under' the Declaratory Judgment Act, 28 U.S.C. § 2201, because ...