United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON DEFENDANT'S AMENDED
MOTION TO DISMISS (DOCKET NO. 23)
TIMOTHY S. HILLMAN DISTRICT JUDGE
Foss (“Plaintiff”) filed an Amended Complaint,
(Docket No. 20), asserting copyright infringement (Count I),
tortious interference with an advantageous business
relationship (Count II), conversion (Count III), unfair and
deceptive business practices (Count IV), breach of contract
(Count V), and fraud and breach of fiduciary duty (Count VI).
Marvic (“Defendant”) subsequently moved to
dismiss Counts I and V for failure to state a claim. (Docket
No. 23). For the reasons below, Defendant's motion is
granted in part and
denied in part.
factual background is taken from Plaintiff's Complaint
and assumed to be true at this stage in the litigation.
October 2006, Plaintiff entered into a contract with
Defendant to create artwork for Defendant's catalogue. In
March 2018, Plaintiff registered the brochure with the
Federal Copyright Office. Plaintiff claims that Defendant
subsequently breached the contract and infringed on
Plaintiff's copyright by modifying Plaintiff's work
and continuing to use it without her permission. In addition,
Defendant did not compensate Plaintiff for the continued use.
February 26, 2019, this Court stayed this litigation in light
of a case pending before the Supreme Court that had the
potential to be dispositive of Plaintiff's copyright
claims. (Docket No. 46); see also Fourth Estate Public
Benefit Corp. v. Wall-Stree.com, LLC, No. 17-571, 2019
WL 1005829 (U.S. Mar. 4, 2019).
Motion to Dismiss
defendant may move to dismiss, based solely on the complaint,
for the plaintiff's “failure to state a claim upon
which relief can be granted.” Fed.R.Civ.P. 12(b)(6). To
survive a Rule 12(b)(6) motion to dismiss, a complaint must
allege “a plausible entitlement t relief.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 559, 127
S.Ct. 1955 (2007). Although detailed factual allegations are
not necessary to survive a motion to dismiss, the standard
“requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action
will not do.” Id. at 555, 127 S.Ct. 1955.
“The relevant inquiry focuses on the reasonableness of
the inference of liability that the plaintiff is asking the
court to draw from the facts alleged in the complaint.”
Ocasio-Hernandez v. Fortuno-Burset, 640 F.3d 1, 13
(1st Cir. 2011).
evaluating a motion to dismiss, the court must accept all
factual allegations in the complaint as true and draw all
reasonable inferences in the plaintiff's favor.
Langadinos v. American Airlines, Inc., 199 F.3d 68,
68 (1st Cir. 2000). It is a “context-specific
task” to determine “whether a complaint states a
plausible claim for relief, ” one that “requires
the reviewing court to draw on its judicial experience and
common sense.” Ashcroft v. Iqbal, 556 U.S.
662, 679, 129 S.Ct. 1937 (2009) (internal citations omitted).
“[W]here 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.” Id.
(quoting Fed.R.Civ.P. 8(a)(2)). On the other hand, a court
may not disregard properly pled factual allegations,
“even if it strikes a savvy judge that actual proof of
those facts is improbable.” Twombly, 550 U.S.
at 556, 127 S.Ct. 1955.
Plaintiff appears pro se, we construe her pleadings more
favorably than we would those drafted by an attorney. See
Erickson v. Pardus, 551 U.S. 89, 94 (2007).
Nevertheless, Plaintiff's pro se status does not excuse
her from complying with procedural and substantive law.
See Ahmed v. Rosenblatt, 118 F.3d 886, 890 (1st Cir.
Copyright Infringement (Count I)
holder of a valid [visual art] copyright possesses exclusive
rights to reproduce and distribute not only exact
‘copies' of the [work] but also ‘derivative
works' based upon it.” Coquico, Inc. v.
Rodriguez-Miranda, 562 F.3d 62, 66 (1st Cir. 2009)
(quoting 17 U.S.C. § 106). “A person who
trespasses upon any of these ...