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Mallon v. Marshall

United States District Court, D. Massachusetts

March 31, 2015

ANDREW P. MALLON., Plaintiff,
v.
JOHN MARSHALL and DENNIS J. GOEBEL, Defendants

For Andrew ¶ Mallon, Plaintiff: Plaintiff, LEAD ATTORNEY, O'Reilly IP PLLC, Brooklyn, NY.

For John Marshall, Dennis J Goebel, Defendants: Kevin Tottis, LEAD ATTORNEY, PRO HAC VICE, TottisLaw, Chicago, IL; Kathryn A. O'Leary, Gould & Ettenberg, PC, Worcester, MA.

Page 275

MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS' MOTIONS TO DISMISS

TIMOTHY S. HILLMAN, UNITED STATES DISTRICT JUDGE.

Background

Plaintiff, Andrew Mallon (" Plaintiff" ) has filed a Complaint against defendants, John Marshall and Dennis Goebel (" Defendants" ) asking the Court for declaratory judgment that he is the co-author of a scientific research paper, under the Copyright Act, 17 U.S.C. § § 101 et seq. Defendants filed separate motions to dismiss the Complaint, which are argued in a joint Memorandum. For the following reasons, the motion to dismiss is denied.

Facts

Plaintiff joined the Defendant Marshall's laboratory at Brown University in July 2008 as a post-doctoral research associate. See Complaint, Docket No. 1, ¶ 8. Plaintiff

Page 276

was primarily in charge of researching a compound called CN 2097 and is the inventor on the patent protecting this work. He planned, prepared, or reviewed all of the data related to that project and supervised and trained other scientists working on the project. Id. ¶ 12.

In October 2011, Plaintiff and Defendant submitted a paper describing their work to Neuron (the " Neuron Paper" ), a leading academic journal. The Neuron Paper listed Plaintiff as the first author, representing his leading role in conceiving, researching and drafting the paper. Neuron did not publish their paper on CN 2097. Id. ¶ 22. Plaintiff suggested they submit their paper on CN 2097 to PLOS Biology, another academic journal, for publication. Plaintiff delineated detailed revisions to the paper to improve the quality of the submission. Id., ¶ 23. In November of 2011, Plaintiff and Defendant had a falling out and stopped working together. Id. P24. Defendants Marshall and Goebel made additional changes and revisions to the paper, however, the core of the paper remained Plaintiff's work related to CN 2097. Id. ¶ ¶ 27 & 28.

Defendants Marshall and Goebel presented the paper for submission in the journal PLOS Biology, where it was ultimately accepted for publication. Id. They did not list Plaintiff as an author. Id. ¶ ¶ 27, 28. In addition, they signed a Creative [114 U.S.P.Q.2d 1468] Commons Attributions License, which allows anyone to use the copyrighted work in return for citing the authors and source. Defendants now move to dismiss Plaintiff's claim, arguing that Plaintiff has not created copyrightable work, that he has no rights of attribution under the Copyright Act, that he is not a joint author of the PLOS Biology Paper, that his copyright is assigned to Brown as a work for hire, and that the case should be dismissed because Plaintiff has not registered a copyright. Plaintiff opposes the motion and contends that his work on the CN 2097 draft was indeed independent copyrightable expression and that he is co-author of the PLOS Biology paper within the meaning of 17 U.S.C. § 102. Plaintiff further argues that he has not claimed a right of attribution and that academic papers are not considered works for hire under the Copyright Act.[1]

Discussion

To survive a Rule 12(b)(6) motion to dismiss, the factual allegations in a complaint must " possess enough heft" to state a claim to relief that is plausible on its face. Bell A. Corp. v. Twombly, 550 U.S. 544, 557, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). " A case has 'facial plausibility' when plaintiff pleads factual content that allows the court to draw a reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Twombly, 550 U.S. at 556). " Plausible, of course, means more than merely possible, and gauging a pleaded situation's plausibility is a 'context-specific' job that compels [the Court] 'to draw on' ...


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