United States District Court, W.D. North Carolina, Asheville Division
MEMORANDUM OF DECISION AND ORDER
REIDINGER UNITED STATES DISTRICT JUDGE.
MATTER is before the Court on the Defendant's
Motion to Dismiss Plaintiff's First Amended Complaint
September 5, 2018, the Plaintiff David Oppenheimer
(“Plaintiff”) filed this action against Defendant
Daniel Kenney (“Defendant”), asserting claims
under the Copyright Act, 17 U.S.C. §§ 101 et
seq. [Doc. 1]. The Defendant filed a motion to dismiss
the Complaint pursuant to Rules 12(b)(4), (5), and (6) of the
Federal Rules of Civil Procedure. [Doc. 5]. The Plaintiff
subsequently filed an Amended Complaint on November 13, 2018.
Amended Complaint, the Plaintiff alleges that the Defendant
infringed his copyrights by using the Plaintiff's aerial
photographs of the University of North Carolina at Asheville
campus and Lake Kanuga [Docs. 7, 7-1, 7-2, 7-3]. The
Plaintiff further alleges that the Defendant “has
benefitted from his infringements of the [aerial photographs]
while [Plaintiff] has suffered and will continue to suffer
monetary damages, irreparable injury to his business,
reputation, and goodwill, and dilution in the
marketplace.” [Doc. 13 at ¶ 19].
Defendant now seeks the dismissal of this action pursuant to
Rule 12(b)(6) of the Federal Rules of Civil Procedure,
arguing that the Plaintiff's Amended Complaint fails to
state a claim upon which relief can be granted. [Docs. 11,
11-1]. The Plaintiff has filed an opposition to
Defendant's motion [Doc. 13], to which the Defendant has
replied [Doc. 14].
STANDARD OF REVIEW
central issue for resolving a Rule 12(b)(6) motion is whether
the claims state a plausible claim for relief. See
Francis v. Giacomelli, 588 F.3d 186, 189 (4th Cir.
2009). In considering Defendant's motion, the Court
accepts the allegations in the Amended Complaint as true and
construes them in the light most favorable to Plaintiff.
Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc.,
591 F.3d 250, 253 (4th Cir. 2009); Giacomelli, 588
F.3d at 190-92. Although the Court accepts well-pled facts as
true, it is not required to accept “legal conclusions,
elements of a cause of action, and bare assertions devoid of
further factual enhancement.”
Consumeraffairs.com, 591 F.3d at 225; see also
Giacomelli, 588 F.3d at 189.
claims need not contain “detailed factual allegations,
” but must contain sufficient factual allegations to
suggest the required elements of a cause of action. Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007);
see also Consumeraffairs.com, 591 F.3d at 256.
“[A] formulaic recitation of the elements of a cause of
action will not do.” Twombly, 550 U.S. at 555.
Nor will mere labels and legal conclusions suffice.
complaint is required to contain “enough facts to state
a claim to relief that is plausible on its face.”
Id. at 570; see also Consumeraffairs.com,
591 F.3d at 255. “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); see also
Consumeraffairs.com, 591 F.3d at 255. The mere
possibility that a defendant acted unlawfully is insufficient
to survive a motion to dismiss. Consumeraffairs.com,
591 F.3d at 256; Francis v. Giacomelli, 588 F.3d
186, 193 (4th Cir. 2009). Ultimately, the well-pled factual
allegations must move a plaintiff's claim from possible
to plausible. Twombly, 550 U.S. at 570;
Consumeraffairs.com, 591 F.3d at 256.
the well-pleaded factual allegations of the Amended Complaint
as true, the following is a summary of the relevant
Plaintiff is a professional photographer who takes
photographs and publishes them to a website for sale. [Doc. 7
at ¶¶ 5-6]. The Plaintiff created the two
photographs at issue here. [Id. at ¶ 5]. Before
uploading the two photographs, the Plaintiff obtained
copyrights for them and added copyright management
information, including a watermark, a caption, and metadata.
[Id. at ¶¶ 7-9].
point, the Plaintiff discovered that the two copyrighted
photographs had been uploaded to the Defendant's blog.
[Id. at ¶¶ 10-11, Exh. 3]. On June 12,
2018, the Plaintiff sent an email to the Defendant concerning
his infringements of the copyrighted photographs and
requesting information about the details of the publication.
[Id. at ¶ 12, Exh. 4]. On June 13, 2018, the
Defendant sent an email ...