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MidTerm_Spring 2024_Dube, Exams of Civil procedure

Midterm exam essay. Professor Dube Spring 2024

Typology: Exams

2023/2024

Uploaded on 08/01/2024

ashley-sperling
ashley-sperling 🇺🇸

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Issue
Did Los Franscico illegally infringe and/or defraud plaintiff Taylor?
Rule
Rule 8 of Fed. R. Civ. Proc. requires that a pleasing must contain (i) a short and plain statement of
the grounds for the court’s jurisdiction, (ii) a short and plain statement of the claim showing that the
pleader is entitled to relief, and (iii) a demand for relief sought. The pleader’s statement of the claim must
amount to more than bare assertions that are a “formulaic recitation of elements” or purely conclusory
allegations. Aschcroft v. Iqbal, 556 U.S. 662 (2009); Yeazell, 387. To survive a Rule 12(b)(6) motion to
dismiss, the pleader must support its claim through a factual presentation that is plausible in the “light of
judicial experience and common sense.” Yeazell, 394. Further, the court must take all factual allegations
as true, except where the allegation defies reality. Id. at 393.
Analysis
I. Dismissal on the grounds that Ms. Taylor showed no evidence that the material was
registered, or even pre-registered, the song with the U.S. Copyright Office, as required by 17
U.S.C. § 411.
17 U.S.C. § 501(b) provides, “The legal or beneficial owner of … a copyright is entitled … to
institute an action for any infringement of that particular right committed while he or she is the owner of
it.” Compl. ¶ 11. However, one of the elements of federal copyright-infringement action is registration or
pre-registration of the copyrighted work.
The complaint does not purport to have registered or pre-registered the copyright material. While
at the outset, this would favor our client, courts liberally allow amendments to pleadings. Under FRCP
Rule 15, a party may amend the pleading once as a matter of course within (A) 21 days after serving or
(B) 21 days after service of a responsive pleading if one is required. In this case, the client has responded
with a motion to dismiss under Rule 12(b)(6).
On this ground, the court will likely grant the motion at this point.
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Issue Did Los Franscico illegally infringe and/or defraud plaintiff Taylor? Rule Rule 8 of Fed. R. Civ. Proc. requires that a pleasing must contain (i) a short and plain statement of the grounds for the court’s jurisdiction, (ii) a short and plain statement of the claim showing that the pleader is entitled to relief, and (iii) a demand for relief sought. The pleader’s statement of the claim must amount to more than bare assertions that are a “formulaic recitation of elements” or purely conclusory allegations. Aschcroft v. Iqbal , 556 U.S. 662 (2009); Yeazell, 387. To survive a Rule 12(b)(6) motion to dismiss, the pleader must support its claim through a factual presentation that is plausible in the “light of judicial experience and common sense.” Yeazell , 394. Further, the court must take all factual allegations as true, except where the allegation defies reality. Id. at 393. Analysis I. Dismissal on the grounds that Ms. Taylor showed no evidence that the material was registered, or even pre-registered, the song with the U.S. Copyright Office, as required by 17 U.S.C. § 411. 17 U.S.C. § 501(b) provides, “The legal or beneficial owner of … a copyright is entitled … to institute an action for any infringement of that particular right committed while he or she is the owner of it.” Compl. ¶ 11. However, one of the elements of federal copyright-infringement action is registration or pre-registration of the copyrighted work. The complaint does not purport to have registered or pre-registered the copyright material. While at the outset, this would favor our client, courts liberally allow amendments to pleadings. Under FRCP Rule 15, a party may amend the pleading once as a matter of course within (A) 21 days after serving or (B) 21 days after service of a responsive pleading if one is required. In this case, the client has responded with a motion to dismiss under Rule 12(b)(6). On this ground, the court will likely grant the motion at this point.

However, after searching the public USPTO database, we are aware of evidence supporting that Ms. Taylor registered with the U.S. Copyright Office and paid $800 expedited processing. One of the bedrocks of the notice-pleading system is liberal amendments to proceedings, and the plaintiff does not need the court’s permission to enter the amendment under Rule 15(A) or 15(B). Therefore, our client should expect Ms. Taylor to amend her pleading under Rule 15(B) within 21 days of service of this motion. Since only one Rule 12 motion is permitted, the client’s next action would be to request as a matter of law summary judgment pursuant to Rule 56. However, assuming the plaintiff files the amendment as predicted above and once the amendment is entered, plaintiff will likely have sufficient evidence of registration to defeat a motion under Rule 56 for summary judgment. II. Dismissal on the grounds that there is no evidence that Los Francisco generated $10,000, in gross revenue associated with the alleged infringement, whereas defendants have evidence of a $20,000,000 loss. Plaintiff hired a third-party accounting firm who determined the alleged infringement generated gross revenue of $10,000,000. Compl. ¶ 13. The client’s evidence reports a loss of $20,000,000. Answer ¶

  1. Under 17 U.S.C. § 504(b), a copyright-infringement plaintiff can recover “the actual damages suffered by him or her as a result of the infringement, and any profits of the infringer that are attributable to the infringement and not taken into account in computing the actual damages.” In seeking to recover such profits, the copyright owner is “required to present proof … of the infringer’s gross revenue.” In this case, the plaintiff has presented plausible evidence of “gross revenue.” The court is required to take the allegation as true unless it defies logic and reason. The plaintiff hired a third-party not otherwise affiliated with the action, and therefore, the allegation of the value of the gross revenue will likely be credited. The client alleges the infringement work suffered a loss rather than a profit. According to FRCP Rule 8(b)(6) an allegation other than one relating to the amount of damages that is not denied is

“representations” that were made by the defendant that supports that they agreed to only use the material in the one work “88 Keys”. The court will accept as true that the parties were in a contractual relationship for the material to be used in “88 Keys”. However, there is no showing on the part of the plaintiff that the contract was limited only to “88 Keys” and trailers associated therewith. The defendant’s response is vague and seeks dismissal with no grounds or rationale provided to support the conclusion. The plaintiff may move under Rule 12(e) for a more definite statement so that they may prepare a response, or the court may, under Rule 12(f) strike this defense as insufficient either on its own (Rule 12(f)(1)) or on motion by the plaintiff (Rule 12(f)(2)). Therefore, this defense will be unsuccessful. Conclusion The client’s motion under Rule 12(b)(6) will likely be successful on some grounds initially, but should the plaintiff file the amendments as predicted, a judgment as a matter of law under Rule 56 is unlikely to be successful for the defendant. Therefore, the defendant should prepare for discovery or make attempts to settle with the plaintiff to save on cost and time.