Case Information
*1 IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION MICIIAEL T.BENNETT, * * *
Plaintić°Ź * * 1:17-CV-03505-ELR
V. * MARVEL ENTERTAINMIENT and * NIARK NIILLAR, *
* *
Defendants. *
ORDER There are several matters before the Court, including Defendant Marvel Entertainment's "Motion to Dismiss, with Prejudice, Plaintiff s Second Amended Complaint" [Doc. 45]. The Court's rulings and conclusions are set forth below. I. Background
On March 17,2017, Plaintiff Michael T. Bennett, proceedingpro se, filed an action in the State Court of Gwinnett County, Georgia, against Defendants Marvel Entertainment ("Marvel") and its purported employee, Mark Millar ("Millar") (collectively, "Defendants"). Compl. [Doc. l-l]. Plaintiff alleged, in a one-page *2 complaint,thatDefendants committed criminal copyright infringementl for the theft of Plaintiff s 2008 Owl Unlikely Crusader and2012 Owl Knight's Quickeningbooks (collectively,"Owl books"). Plaintiff sought $1.2 billion in lost income. [Id.] On July 31, 2017, Plaintiff filed a "Motion to add Copyright Infractions to Claim," ("Motion to Amend"). [Doc. 3]. Plaintiff attached more than 300 pages to his Motion to Amend, which appeared to be Plaintiff s amended complaint ("300-page Amended Complaint").
On September 13,2017, Defendant Marvel removed Plaintiff s suit from the State Court of Gwinnett County, Georgia, to this Court. [Doc. 1]. On October 20, 2017, Defendant Marvel jointly filed (l) a motion to dismiss Plaintifls original complaint, (2) a motion to dismiss Plaintiff s 300-page Amended Complaint, and (3) Defendant Marvel's opposition to the Court allowing Plaintiff to amend his complaint. [Doc. I 1-1].
On July 17 ,2018, after careful review, the Court granted Defendant Marvel,s motion to dismiss; however, given Plaintiffs pro se status, the Court allowed Plaintiff an additional opportunity to amend his complaint. [Doc. 36]. Specifically, I while there is a criminal copyright infringement statute, 17 u.s.c. $ 506, plaintiff, as a private individual, cannot assert a private cause of action for criminal copyright infringement. Killy v. L.L. cool J., 145 F.R.D.32,39 (s.D.N.y. 1992), affld sub nom., z1 psazch pa cirl 1994) ("[T]here is no private cause of action under the criminal provisions of the copyright law.,,). However, given Plaintiff spro se status, Defendant Marvel construed "Plaintiff s claim to be one for civil copyright infringement." [Doc. 11-l at 7]. The Court also construed Plaintifls claim as one for civil copyright infringement. *3 the undersigned explained that Plaintiff s 300-page Amended Complaint was a shot- gun pleading that (1) did not specifu which Defendant was responsible for which act and (2) failed to separate his allegations into different counts or claims for relief. [Id. at 6]. Furthermore, the undersigned explained that Plaintiffs extensive "comparisons" of the purportedly infringing Marvel works were insufficient to establish a valid copyright infringement claim that demonstrated that the works at issue were "substantially similar" such that "an average lay observer would recognize the alleged copy as having been appropriated from the copyrighted work." [Id. (quoting Beal v. Paramount Pictures Corp.,20 F.3d 454,459 n.4 (1lth Cir. ree4))1.
On August 2,2018, Plaintiff filed a "Motion to Resubmit New Paperwork as ordered on July 17 , 2018 . . ." which the Court and Defendant Marvel construe as Plaintiffs Second Amended Complaint.2 [Doc. 42]. on August 20, 2ol1, Defendant Marvel filed a "Motion to Dismiss, with Prejudice, Plaintifls Second Amended Complaint" [Doc. 45], which is now ripe for the Court's review. il. Motion to Dismiss Legal Standard
When considering a 12(b)(6) motion to dismiss, the Court must accept as true the allegations set forth in the complaint drawing all reasonable inferences in the [2] That same day, Plaintiff filed a "Motion to Remove Mark Millar as Defendant," which the Court construes as a motion to dismiss Defendant Mark Millar. [Doc. 41]. Defendant Marvel filed a response in non-opposition to Defendant Millar's dismissal. [Doc. 44]. The Court grants Plaintiff s motion to dismiss Defendant Millar as unopposed. *4 light most favorable to the plaintiff. Bell Atl. Corp. v. Twomblv, 550 U.S. 544,555- 56 (2007); U.S. v. Stricker, 524 F. App'x 500, 505 (1 lth Cir. 2013) (per curiam). Even so, a complaint offering mere "labels and conclusions" ot "a formulaic recitation of the elements of a cause of action" is insufficient. Ashcroft v. Iqbal, 556 U.S 662, 678 (2009) (quoting Twombly, 550 U.S. at 555); accord Fin. Sec. Assurance. Inc. v. Stephens. Inc., 500 F.3d 1276, 1282-83 (1lth Cir. 2007).
Further, the complaint must "contain sufficient factual matter, accepted as true, 'to state a claim to relief that is plausible on its face."' Iqbal,556 U.S. at 678 (citing Twombl),, 550 U.S. at 570). Put another way, a plaintiff must plead "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. This so-called "plausibility standard,, is not akin to a probability requirement; rather, the plaintiff must allege sufficient facts such that it is reasonable to expect that discovery will lead to evidence supporting the claim. Id. UI. Discussion
Two elements must be proven to establish copyright infringement: (1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original. Beal v. Paramount Pictures Corp. ,20 F .3d, 454, 459 ( [1] 1th Cir. 1994). To establish copying, the plaintiff must show that the defendant had access to the copyrighted work and that the two works are so "substantially similar" that an average lay obserwer would recognize the alleged copy as having been appropriated from the original work. Calhoun v. Lillenas Publ'9,298 F.3d 1228, 1232 (llth Cir. 2002). If the plaintiff cannot show access, the plaintiff may still prevail by demonstrating that the works are "strikingly similar.,, Id. at *5 1232 n.6. Striking similarity exists where the proof of similarity in appearance is so striking that the possibilities of independent creation, coincidence, and prior common Source are, aS a practical matter, precluded . Corwin v. Walt Disney Co., 475 F.3d 1239, 1253 (l1th Cir. 2007). While expression is protected, ideas are not. See 17 U.S.C. $ 102(b). In addition to broad ideas, noncopyrightable material includes scdnes d faire, those stock scenes that naturally flow from a common theme. Beal,20 F.3d at 459-60. Lists of similarities between two works are inherently subjective and unreliable, particularly where the list contains random similarities, as many such similarities can be found in very dissimilar works. Id. at 460.
Singleton v. Dean, 611 F. App'x 671,672 (11th Cir. 2015). Although the Court recognizes that "pro se pleadings are held to a less stringent standard than pleadings drafted by attorneys," nothing requires a district court to waste judicial resources attempting to decipher an unintelligible pleading. Tannenbaum v. United States, 148 F.3d 1262, 1263 (l lth Cir. 1998) (per curiam); see Peavey v. Black,476 F. App'x 697 ,699 (1 1th Cir.2012) (per curiam) (affirming dismissal of pro se complaint that was "unintelligible, indecipherable, and replete with irrelevant facts, making it impossible for the defendants to know what [the plaintiff was] claiming, against whom, and on what grounds").
Again, the Court has diligently attempted to determine the wrongs for which Plaintiff seeks redress. It appears that Plaintiff again claims that Defendants, in creating the productions Captain America: Winter Soldier, Ant-Man, Captain America: Civil War, Guardians of the Galaxy, Avengers: Ag" of Ultron, and Agents
*6 of S.H.I.E.L.D., copied Plaintiffs self-published Oyyl books. In his Second Amended Complaint, Plaintiff added additional Marvel works that he alleges Defendant copied from his Owl books: Captain America: The First Avenger; The Avengers; Iron Man 3; Spider-Man: Homecoming; Thor: Ragnarok; Btack Panther; Avengers: Infinity War; and Ant-Mqn and the Wasp. Throughout most of his Second Amended Complaint, Plaintiff compares his Owl books with these above-mentioned Marvel productions with few references to the specific Marvel production for comparison, and instead, generally refers to the Marvel characters most of the time.3 For example, like his First Amended Complaint, Plaintiff compares his character Owl's mechanized wings with Marvel's character Falcon's mechanized wings, [Compare Doc. l-l at 49-54 with Doc . 42-7 at 10], and states that his character "owl's use of a parachute is like Falcon,s use of a parachute.,, le_omparc Doc. l_l at 40 with Doc . 42-7 at 221.a
Just as the Court explained in its July [17] ,2018 Order, these blanket assertions regarding the purported similarities between Plaintiff s Owt books and the Marvel [3] Defendant points out in its motion to dismiss, that Plaintiff attached evidence of his copyright registration for his 2012 owl book but not his 2oo8 owl book. while not determinative of the court's granting of Defendant's motion, infra, Plaintiff did not attach this registration to his second Amended complaint as evidence orihe first prong orrri, copyright infringement claim. a As additional examplei, Plaintiff also asserts that "owl vuutting to his desk and seeing Morikaido is like captain America walking up to Fury's desk and seeking Fury,, [Doc.42-7at 3]; ,,owl
seeing a little kid is like captain Americi seeing a little kid" [Id. at 5]; "owl wearing street clothes while he uses his wings is like F.alcon wearing street clothes while he uses his wings,, [Id. at 7]; .,owl being seen on camera is like captain America being seen on camera,, [Id. at 9]; .,owl using a
like captain America.r.irg a laptop" tld. ail5l; and "owl being knocked to the floor is ]ptw 1s like [t]he scientist/doctor being t<noct<ed io t-t
g-rrd,, tld. at 16]. " *7 productions appear to be broad ideas found in most action movies and comic books and scdnes dfaire, rather than copyright infringement. More specifically, Plaintifls numerous attempts to compare his Owl books with the Marvel productions, while wide-ranging, are generalized rather than "substantially similar" or "strikingly similar." See Sinsleton, 611 F. App'x at 672 (affirming district court's dismissal of pro se plaintifls copyright infringement complaint by stating "[Plaintiffl has not shown any examples of copyright infringement, because the alleged similarities either do not exist or concem broad ideas or scines d faire. Her complaint points to a list of random similarities between two books, which is exactly what this court rejected as evidence of copyright infringement in Beal.").
Furthermore, as previously explained by the Court, plaintiffs Second Amended complaint is more of a diary-like comparison than a compraint. See Yeyille v. Miami Dade Cty. Public Schools ,643 F. App,x 882, gg4 (l lth Cir.2016) ("[T]he district court correctly concluded that fplaintiff]'s third amended complaint . . . was a shotgun pleading. Rather than using short and plain statements as required by the Federal Rules, the third amended complaint included an g5- paragraph fact section spanning 3 1 pages,, much of it written in narrative, diary-like fo.-."). Thus, Plaintiff s Second Amended Complaint fails to state a claim.
Accordingly, for all these reasons, the court grants Defendant Marvel's motion to dismiss Plaintiff s Second Amended Complaint [Doc. 45]. *8 IV. Conclusion For the foregoing reasons, the Court GRANTS Defendant Marvel's "Motion for Withdrawal of Sarah LaFantano as Counsel" [Doc. 3a]; DENIES Plaintiffs "Motion to inquire why Ms. Sarah Parker LaFantano resigned her position at Alston & Bird" [Doc. 37]; DENIES Defendant Marvel's Motion for Attorneys' Fees related to Plaintiff s inquiry [Doc. a0]; GRANTS Plaintiff s "Motion to Remove Mark Millar as Defendant" [Doc . al); GRANTS Plaintiff s "Motion to Resubmit New Paperwork as ordered on July 17, 2018 . . ." [Doc. a2]; GRANTS Defendant Marvel Entertainment's "Motion to Dismiss, with Prejudice, Plaintiffs Second Amended complaint" [Doc. a5); DISMTSSES WITH PREJUDTCE this action; and DIRECTS the Clerk to close this case.
So ORDERED, thi, M^y of Janu ary,2019. Eleanor L. Ross United States District Judge Northern District of Georgia
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