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Mosca v. Yankee Publishing, Inc.

United States District Court, D. Maine

November 25, 2015

WILLIAM AND SUSAN MOSCA, Plaintiffs
v.
YANKEE PUBLISHING, INC., Defendant.

RECOMMENDED DECISION ON MOTION TO DISMISS

JOHN H. RICH, III, Magistrate Judge.

Yankee Publishing, Inc., moves pursuant to Federal Rule of Civil Procedure 12(b)(6) to dismiss the instant copyright infringement complaint for failure to state a claim upon which relief can be granted. See Yankee Publishing, Inc.'s Motion To Dismiss ("Motion") (ECF No. 11) at 1-2; Complaint and Demand for Jury Trial ("Complaint") (ECF No. 1). For the reasons that follow, I conclude that the Complaint fails to state a claim. However, I recommend that, rather than dismissing it, the court grant the plaintiffs' request, in the alternative, for leave to amend it to allege the existence of an express agreement with more particularity. See Plaintiffs' Opposition to Yankee Publishing Inc.'s Motion To Dismiss ("Opposition") (ECF No. 12) at 8. Specifically, I recommend that the plaintiffs be afforded 10 days from the date of the court's adoption of this recommended decision, if applicable, to file an amended complaint, failing which the Complaint should be dismissed with prejudice.[1]

I. Applicable Legal Standards

A. Motion To Dismiss

The Supreme Court has stated:

While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level.

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations and internal punctuation omitted). This standard requires the pleading of "only enough facts to state a claim to relief that is plausible on its face." Id. at 570. "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 v. Iqbal, 556 U.S. 662, 678 (2009).

In ruling on a motion to dismiss under Rule 12(b)(6), a court assumes the truth of all of the well-pleaded facts in the complaint and draws all reasonable inferences in favor of the plaintiff. Román-Oliveras v. Puerto Rico Elec. Power Auth., 655 F.3d 43, 45 (1st Cir. 2011). Ordinarily, in weighing a Rule 12(b)(6) motion, "a court may not consider any documents that are outside of the complaint, or not expressly incorporated therein, unless the motion is converted into one for summary judgment." Alternative Energy, Inc. v. St. Paul Fire & Marine Ins. Co., 267 F.3d 30, 33 (1st Cir. 2001). "There is, however, a narrow exception for documents the authenticity of which are not disputed by the parties; for official public records; for documents central to plaintiffs' claim; or for documents sufficiently referred to in the complaint." Id. (citation and internal quotation marks omitted).

B. Motion To Amend

Pursuant to Federal Rule of Civil Procedure 15(a)(2), "[t]he court should freely give leave [to amend a pleading] when justice so requires." Fed.R.Civ.P. 15(a)(2). Leave to amend should be granted in the absence of reasons "such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc" Foman v. Davis, 371 U.S. 178, 182 (1962).

The First Circuit has explained:

A motion to amend a complaint will be treated differently depending on its timing and the context in which it is filed.... As a case progresses, and the issues are joined, the burden on a plaintiff seeking to amend a complaint becomes more exacting. Scheduling orders, for example, typically establish a cut-off date for amendments (as was apparently the case here). Once a scheduling order is in place, the liberal default rule is replaced by the more demanding "good cause" standard of Fed.R.Civ.P. 16(b). This standard focuses on the diligence (or lack thereof) of the moving party more than it does on any prejudice to the party-opponent. Where the motion to amend is filed after the opposing party has timely moved for summary judgment, a plaintiff is required to show "substantial and convincing evidence" to justify a belated attempt to amend a complaint.

Steir v. Girl Scouts of the USA, 383 F.3d 7, 11-12 (1st Cir. 2004) (citations, internal quotation marks, and footnotes omitted).

In this case, the defendant filed a motion to dismiss in lieu of an answer, and the plaintiffs requested leave to amend in the context of opposing that motion. See ECF Nos. 11-12. No scheduling order has issued. See generally ECF Docket. Therefore, the liberal default rule applies.

II. Factual Background

The Complaint sets forth the following relevant factual allegations.[2]

Plaintiffs William and Susan Mosca, residents of Lovell, Maine, own the copyright in an original literary work titled "I would Like to Own and Operate an Old-Fashioned Count[r]y Inn, Like the Center Lovell Inn" (the "Center Lovell Inn Composition"), written by Richard and Janice Cox. Complaint ¶¶ 2, 4-5.

The defendant is a corporation organized and existing under the laws of the State of New Hampshire, with its principal place of business in Dublin, New Hampshire. Id. ¶ 3. It operates as a publisher and distributor of national and local magazines and publishes Yankee Magazine. Id.

The Center Lovell Inn Composition was published in October 1993 with the plaintiffs' permission. Id. ¶ 6. On or about December 9, 1993, the plaintiffs registered the copyright for the Center Lovell Inn Composition with the Registry of Copyrights. Id. ¶ 8.

On or about March 13, 2015, Yankee Publishing published the Center Lovell Inn Composition without the permission of or license by the plaintiffs, who at that time owned ...


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