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Goldstein v. Giist

United States District Court, D. South Dakota

March 31, 2015

JOEL H. GOLDSTEIN, Plaintiff,
v.
NIR GIIST, MAVERICK TRADING POST L.L.C., and MORE BEN YORAM, Defendants.

ORDER

JEFFREY L. VIKEN, District Judge.

INTRODUCTION

Plaintiff Joel Goldstein filed a complaint against the defendants alleging a violation of the copyright laws of the United States, 17 U.S.C. § 101 et seq. (Docket 1). Defendants Maverick Trading Post, L.L.C., ("Maverick") and More Ben Yoram filed motions to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) and (b)(6). (Dockets 7 & 20). Defendant Nir Giist filed a motion to dismiss pursuant to Rule 12(b)(1), Rule 12(b)(6) and 17 U.S.C. § 507(b). (Docket 17). Briefing is complete and the motions are ripe for resolution.

For the reasons stated below, defendant Maverick's motion to dismiss is denied, defendant Giist's motion to dismiss is denied and defendant Yoram's motion to dismiss is granted.

DISCUSSION

Rule 12 provides in part:
(b)... a party may assert the following defenses by motion:
(1) lack of subject-matter jurisdiction;
....
(6) failure to state a claim upon which relief can be granted....
A motion asserting any of these defenses must be made before pleading if a responsive pleading is allowed.... No defense or objection is waived by joining it with one or more other defenses or objections in a responsive pleading or in a motion.

Fed. R. Civ. P. 12(b)(1) & (6). "Motions to dismiss for lack of subject-matter jurisdiction can be decided in three ways: at the pleading stage, like a Rule 12(b)(6) motion; on undisputed facts, like a summary judgment motion; and on disputed facts." Jessie v. Potter, 516 F.3d 709, 712 (8th Cir. 2008).

Under a Rule 12(b)(1) motion to dismiss, a defendant has the right to challenge the "lack of subject-matter jurisdiction...." Fed.R.Civ.P. 12(b)(1). "Jurisdictional issues, whether they involve questions of law or of fact, are for the court to decide." Osborn v. United States, 918 F.2d 724, 729 (8th Cir. 1990). "In order to properly dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), the complaint must be successfully challenged on its face or on the factual truthfulness of its averments." Titus v. Sullivan, 4 F.3d 590, 593 (8th Cir. 1993) (internal citation omitted). "In a facial challenge to jurisdiction, all of the factual allegations concerning jurisdiction are presumed to be true and the motion [to dismiss] is successful if the plaintiff fails to allege an element necessary for subject matter jurisdiction." Id . (internal citation omitted). While considering a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction, the court must "accept all factual allegations in the pleadings as true and view them in the light most favorable to the nonmoving party." Great Rivers Habitat Alliance v. Federal Emergency Management Agency, 615 F.3d 985, 988 (8th Cir. 2010). The court "has authority to consider matters outside the pleadings when subject matter jurisdiction is challenged under Rule 12(b)(1).... This does not... convert the 12(b)(1) motion to one for summary judgment." Harris v. P.A.M. Transp., Inc., 339 F.3d 635, 638 (8th Cir. 2003). "The district court may take judicial notice of public records and may thus consider them on a [Rule 12(b)(1)] motion to dismiss." Stahl v. U.S. Department of Agriculture, 327 F.3d 697, 700 (8th Cir. 2003).

"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) (internal citations, quotation marks and brackets omitted). The "plausibility standard" at the pleading stage requires a showing greater than the mere possibility of misconduct yet less than the probability of misconduct. Id. at 556-58. To survive a Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief may be granted, "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'... 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) (citing Twombly, 550 U.S. at 570) (other internal citation omitted). The Court in Iqbal expounded on the "plausibility standard" articulated in Twombly:

To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to "state a claim to relief that is plausible on its face." 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. 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. Where a complaint pleads facts that are "merely consistent with" a defendant's liability, it "stops short of the line between possibility and plausibility of entitlement to relief.'"...
[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.... Rule 8 marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.... [O]nly a complaint that states a plausible claim for relief survives a motion to dismiss. Determining whether a complaint states a plausible claim for relief will... be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not "show[n]"-"that the pleader is entitled to relief."

556 U.S. at 678-79 (internal citations omitted). See also Taxi Connection v. Dakota, Minnesota & E. R.R. Corp., 513 F.3d 823, 826 (8th Cir. 2008) ("In analyzing a 12(b)(6) motion, this court assumes all factual allegations in the complaint are true, but the complaint must contain sufficient facts, as opposed to mere conclusions, to satisfy the legal requirements of the claim to avoid dismissal.") (internal quotation marks omitted). "A motion to dismiss should be granted if it appears beyond doubt that the plaintiff can prove no set of facts which would entitle him to relief." Id.

While the court must accept plaintiff's "factual allegations... [it] need not accept as true [his] legal conclusions even if they are cast in the form of factual allegations...." Ashley v. U.S. Department of Interior, 408 F.3d 997, 1000 (8th Cir. 2005) (internal citations and quotation marks omitted). "The burden of proving federal jurisdiction... is on the party seeking to establish it, and this burden may not be shifted to the other party." Great Rivers Habitat Alliance, 615 F.3d at 988 (internal quotation marks and brackets omitted).

A copyright claim must be "commenced within three years after the claim accrued." 17 U.S.C. § 507(b). "An ownership claim accrues only once, when a reasonably diligent plaintiff would have been put on inquiry as to the existence of a right.... Under this rubric, any number of events can trigger the accrual of an ownership claim, including an express assertion of sole authorship or ownership.... By contrast, an infringement action may be commenced within three years of any infringing act, regardless of any prior acts of infringement; [courts] have applied the three-year limitations period to bar only recovery for infringing acts occurring outside the three-year period." Kwan v. Schlein, 634 F.3d 224, 228 (2d Cir. 2011) (internal citations, quotation marks and brackets omitted; emphasis in original). "[T]he statute of limitations cannot be defeated by portraying an action as one for infringement when copyright ownership rights are the true matter at issue." Id. at 229. "[I]nfringement' claims... are time-barred as a matter of law where... the underlying ownership claim is time-barred." Id. at 229.

The court is not required to state findings of fact or conclusions of law when ruling on a Rule 12 motion. Fed.R.Civ.P. 52(a)(3). However, in fairness to the parties, the court will set ...


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