United States District Court, D. Maryland
LIPTON HOLLANDER, UNITED STATES DISTRICT JUDGE
plaintiff Benjamin Vient filed a copyright infringement suit
against defendants APG Media of Chesapeake LLC
(“APG”) and Ancestry.com Operations Inc.
(“Ancestry”), alleging violations of the
Copyright Act, 17 U.S.C. §§ 101, et seq.
(“Act”). ECF 17 (the “Amended
Complaint”). In particular, Vient asserts that
defendants, without authorization, reproduced, distributed,
and displayed his copyrighted works. See 17 U.S.C.
§ 106(1), (3), (5). In support of his Amended Complaint,
plaintiff filed two exhibits containing screenshots of two
websites allegedly displaying his copyrighted works. ECF
17-1; ECF 17-2. He seeks monetary damages as well as
injunctive relief. Id. at 2.
moved to dismiss the suit (ECF 19), supported by a memorandum
(ECF 19-1) (the “Motion to Dismiss”) and an
exhibit. ECF 19-2. On April 15, 2019, Ancestry also moved to
dismiss, incorporating the Motion to Dismiss by reference.
ECF 28. I shall refer to both motions collectively as the
“Motion to Dismiss.”
motions filed by Vient are also pending, including a motion
to renew (ECF 22), three motions for a more definite
statement (ECF 26; ECF 30 ECF 32), a “Motion To
Schedule Conference and Order” (ECF 34), and a
“Motion To Delineate Complaint's Relief.” ECF
36. Plaintiff's motion to renew seeks to revive seven
earlier motions (ECF 7 to ECF 13), which the Court had
dismissed, without prejudice, due to Vient's failure to
effectuate service. See ECF 16. These include a
motion for preliminary injunction. ECF 11. Additionally,
“in an abundance of caution, ” defendants have
filed two additional motions to dismiss. ECF 37; ECF
hearing is necessary to resolve the motions. See
Local Rule 105.6. For the reasons that follow, I shall grant
in part and deny in part the Motion to Dismiss. ECF 19; ECF
28. Specifically, I shall grant the Motion to Dismiss as to
the copyright infringement claim regarding “Drawn to
the Train” and the related photograph, with leave to
amend. And, I shall deny it as to the copyright infringement
claim regarding “How long is too long” and the
I shall grant the motion to renew (ECF 22), but only as to
plaintiff's motion for preliminary injunction. ECF 11. I
shall deny the motion to renew as to plaintiff's other
motions. See ECF 7, ECF 8, ECF 9, ECF 10, ECF 12,
and ECF 13. I shall also deny, as moot, ECF 22, ECF 26, ECF
30, ECF 32, ECF 36, ECF 37, and ECF 38. And, I shall deny
plaintiff's motion to schedule conference (ECF 34), as
asserts that APG and Ancestry have improperly displayed his
copyrighted writings and photographs on their websites. ECF
17. First, he alleges that from on or about February 23,
2018, to an unspecified date, defendants displayed his
article, “Drawn to the Train, ” and related
photography on the webpage of “Cecil Whig.”
Id. APG appears to own Cecil Whig. Second, Vient
alleges that his article, “How long is too long,
” and a related photograph, appeared in “Cecil
Whig” on “Newspapers, ” a website allegedly
owned by Ancestry. See ECF 17-2. Plaintiff does not
expressly state when he believes Ancestry displayed his
works. However, plaintiff's screenshot of the article
suggests that it was displayed on September 20, 2018. ECF
claims that he holds copyright registrations TX0008587743
(ECF 19-1 at 2-3) (“Copyright #1”); TX0008587772
(id. at 4-5) (“Copyright #2”); and
TX0008589705 (id. at 6-7) (“Copyright
#3”). See also ECF 19-2. Copyright #1 covers
the collective work entitled “On the Rails by Ben Vient
and other Contributions: October 2013 - September
2014.” ECF 19-2 at 2-3. Copyright #2 pertains to the
collective work entitled “On the Rails by Ben Vient and
other Contributions: October 2014 - September 2015.”
Id. at 4-5. And, Copyright #3 covers the collective
work entitled “On the Rails by Ben Vient and other
Contributions: October 2015 - July 2016.” Id.
Standard of Review
defendant may test the legal sufficiency of a complaint by
way of a motion to dismiss under Rule 12(b)(6). In re
Birmingham, 846 F.3d 88, 92 (4th Cir. 2017); Goines
v. Valley Cmty. Servs. Bd., 822 F.3d 159, 165-66 (4th
Cir. 2016); McBurney v. Cuccinelli, 616 F.3d 393,
408 (4th Cir. 2010), aff'd sub nom.,
McBurney v. Young, 569 U.S. 221 (2013); Edwards
v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999).
A Rule 12(b)(6) motion constitutes an assertion by a
defendant that, even if the facts alleged by a plaintiff are
true, the complaint fails as a matter of law “to state
a claim upon which relief can be granted.”
a complaint states a claim for relief is assessed by
reference to the pleading requirements of Fed.R.Civ.P.
8(a)(2). That rule provides that a complaint must contain a
“short and plain statement of the claim showing that
the pleader is entitled to relief.” The purpose of the
rule is to provide the defendants with “fair
notice” of the claims and the “grounds” for
entitlement to relief. Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555-56 (2007).
survive a motion under Fed.R.Civ.P. 12(b)(6), a complaint
must contain facts sufficient to “state a claim to
relief that is plausible on its face.”
Twombly, 550 U.S. at 570; see Ashcroft v.
Iqbal, 556 U.S. 662, 684 (2009) (citation omitted)
(“Our decision in Twombly expounded the
pleading standard for ‘all civil actions' . . .
.”); see also Paradise Wire & Cable Defined
Benefit Pension Plan v. Weil, 2019 WL 1105179, at *3
(4th Cir. Mar. 11, 2019); Willner v. Dimon, 849 F.3d
93, 112 (4th Cir. 2017). To be sure, a plaintiff need not
include “detailed factual allegations” in order
to satisfy Rule 8(a)(2). Twombly, 550 U.S. at 555.
Moreover, federal pleading rules “do not countenance
dismissal of a complaint for imperfect statement of the legal
theory supporting the claim asserted.” Johnson v.
City of Shelby, Miss., 574 U.S.__, 135 S.Ct. 346, 346
(2014) (per curiam). But, mere “‘naked
assertions' of wrongdoing” are generally
insufficient to state a claim for relief. Francis v.
Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (citation
other words, the rule demands more than bald accusations or
mere speculation. Twombly, 550 U.S. at 555; see
Painter's Mill Grille, LLC v. Brown, 716 F.3d 342,
350 (4th Cir. 2013). If a complaint provides no more than
“labels and conclusions” or “a formulaic
recitation of the elements of a cause of action, ” it
is insufficient. Twombly, 550 U.S. at 555.
“[A]n unadorned, the-defendant-unlawfully-harmed-me
accusation” does not state a plausible claim of relief.
Iqbal, 556 U.S. at 678. Rather, to satisfy the
minimal requirements of Rule 8(a)(2), the complaint must set
forth “enough factual matter (taken as true) to
suggest” a cognizable cause of action, “even if .
. . [the] actual proof of those facts is improbable and . . .
recovery is very remote and unlikely.”
Twombly, 550 U.S. at 556 (internal quotation marks
reviewing a Rule 12(b)(6) motion, a court “must accept
as true all of the factual allegations contained in the
complaint” and must “draw all reasonable
inferences [from those facts] in favor of the
plaintiff.” E.I. du Pont de Nemours & Co. v.
Kolon Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011)
(citations omitted); see Semenova v. MTA, 845 F.3d
564, 567 (4th Cir. 2017); Houck v. Substitute Tr. Servs.,
Inc., 791 F.3d 473, 484 (4th Cir. 2015); Kendall v.
Balcerzak, 650 F.3d 515, 522 (4th Cir. 2011), cert.
denied, 565 U.S. 943 (2011). But, a court is not
required to accept legal conclusions drawn from the facts.
See Papasan v. Allain, 478 U.S. 265, 286 (1986);
Glassman v. Arlington Cty., 628 F.3d 140, 146 (4th
Cir. 2010). “A court decides whether [the pleading]
standard is met by separating the legal conclusions from the
factual allegations, assuming the truth of only the factual
allegations, and then determining whether those allegations
allow the court to reasonably infer” that the plaintiff
is entitled to the legal remedy sought. A Society Without
a Name v. Virginia, 655 F.3d 342, 346 (4th. Cir. 2011),
cert. denied, 566 U.S. 937 (2012).
ordinarily do not “‘resolve contests surrounding
the facts, the merits of a claim, or the applicability of
defenses'” through a Rule 12(b)(6) motion.
Edwards, 178 F.3d at 243 (quoting Republican
Party v. Martin,980 F.2d 943, 952 (4th Cir. 1992)).
However, “in the relatively rare circumstances where
facts sufficient to rule on an affirmative defense are
alleged in the complaint, the defense may be reached by a
motion to dismiss filed under Rule 12(b)(6).”
Goodman v. Praxair, Inc.,494 F.3d 458, 464 (4th
Cir. 2007) (en banc); accord Pressley v. Tupperware Long
Term Disability Plan,553 F.3d 334, 336 (4th Cir. 2009).
Because Rule 12(b)(6) “is intended [only] to test the
legal adequacy of the complaint, ” Richmond,
Fredericksburg & Potomac R.R. Co. v. Forst, 4 F.3d
244, 250 (4th Cir. 1993), “[t]his principle ...