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Oppenheimer v. Kenney

United States District Court, W.D. North Carolina, Asheville Division

July 10, 2019

DAVID OPPENHEIMER, Plaintiff,
v.
DANIEL KENNEY, d/b/a COACH4ADAY, Defendant.

          MEMORANDUM OF DECISION AND ORDER

          MARTIN REIDINGER UNITED STATES DISTRICT JUDGE.

         THIS MATTER is before the Court on the Defendant's Motion to Dismiss Plaintiff's First Amended Complaint [Doc. 11].

         I. PROCEDURAL BACKGROUND

         On 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. [Doc. 7].

         In his 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].

         The 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].

         II. STANDARD OF REVIEW

         The 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.

         The 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. Id.

         The 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.

         III. FACTUAL BACKGROUND

         Taking the well-pleaded factual allegations of the Amended Complaint as true, the following is a summary of the relevant facts.[1]

         The 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].

         At some 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 ΒΆ 12, Exh. 4]. On June 13, 2018, the Defendant sent an email ...


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