MEMORANDUM OPINION AND ORDER
Before the Court is Defendant Broder-ick Steven “Steve” Harvey’s Motion to Dismiss, or in the Alternative, Motion for a More Definite Statement (doc. 9), filed on January 26, 2015. For the reasons set forth below, Defendant’s Motion is GRANTED in part and DENIED in part.
I.
BACKGROUND
A Factual Background
This case arises out of a dispute regarding video recordings of stand-up comedy performances. Plaintiff Joseph Cooper is an individual who does business as Close Up Video Productions in Dallas, Texas. Doc. 1, Compl. ¶¶ 3, 6. Defendant Broder-ick Steven “Steve” Harvey is a comedian who, most relevant to this lawsuit, opened the-Steve Harvey Comedy Club in 1993, where he performed stand-up comedy acts. Id. at ¶ 12. On March 30, 1993, Plaintiff, doing business as Close Up Video Productions, and Defendant, doing business as Steve Harvey Comedy Club, allegedly entered into a written contract (the ‘Video Contract”), pursuant to which Plaintiff agreed to
[pjroduce video tape(s) of promotional material from the facility including exte*466 rior shots, audience, stage performances and graphics with official logos. Tape will also include names, dates and music soundtracks. Tapes will be taped for continuous play before, during and after show performances. Video footage from KKDA Apollo Night, buffet and lobby area mingling with Mr. Harvey [Defendant] & guest [sic]. Business networking footage included.
Id. at ¶ 13. The Video Contract further provided:
1. It is understood this studio [Plaintiff] is the exclusive official videogra-pher, and others taking videos will be permitted only at our discretion.
3. The studio [Plaintiff] reserves the right to use the original tape and/or reproductions for display, publication or other purposes. Original videotapes remain the exclusive property of the studio.
Id. at ¶ 14.
In addition, Plaintiff alleges he provided advertising and marketing services — for which he incurred debts yet to be paid — on behalf of Defendant. Id. at ¶ 15. Plaintiff insists he fully complied with his obligations under the Video Contract, and that all conditions precedent to his recovery under this agreement were satisfied. Id. at ¶ 17. According to Plaintiff, he produced approximately 120 hours of video recordings under this contract. Id. at ¶ 18. ■ He maintains that Defendant was aware of his intention to use the recordings of Defendant’s performances to create videos to be sold at retail. Id. at ¶ 19. Plaintiff notes that Defendant did not object to these plans, but only requested that Plaintiff delay selling videos that included Defendant’s stand-up comedy performances. Id. Plaintiff understood that the release of the videos might interfere with Defendant’s plans for his career at that time. Id. at ¶ 20. He thus decided to delay releasing videos of Defendant, estimating that such recorded material would become more valuable as Defendant gained popularity. Id.
Plaintiff describes the television shows in which Defendant starred between 1994 and 2000, observing that the videos of his stand-up comedy performances recorded in the early years of the Steve Harvey Comedy Club reflect a comedy style that contrasts with Defendant’s present image. Id. at ¶ 24. Plaintiff adds that he “has removed and plans to remove additional materials that could only serve to create scandal for [Defendant] rather than showing [Defendant’s] earlier comedic style.” Id.
In 1998, Plaintiff informed Defendant of his intention to distribute the videos he had produced pursuant to the Video Contract. Id. at ¶25. Plaintiff alleges that subsequently, in October 1998, he and Defendant orally agreed that Defendant would purchase the videos in question for the sum of $5,000,000, but that Defendant breached this agreement. Id. at ¶ 26. Plaintiff explains that Defendant filed a lawsuit against him in Dallas County State Court on December 16, 1998, to which Plaintiff submitted counterclaims. Id. Although Plaintiff does not detail the context and circumstances of this lawsuit, he indicates that he obtained a temporary restraining order against Defendant on June 28, 1999, which was extended by agreement on July 16,1999 and again on August 12, 1999. Id. at ¶27. Specifically, the August 12, 1999 agreed temporary restraining order restrained Defendant, his agents, employees, attorneys or assigns from
[contacting any of Movant Joe Cooper’s [Plaintiffs] business associates or anyone with whom Movant [Plaintiff] has entered into negotiations with regarding the sale, production, distribution, advertising, or licensing of certain video tape*467 which is the subject matter of the above referenced suit for the purpose of threatening them with legal action, any other negative action in the event they do business with Movant [Plaintiff] or for the purpose of intimidating them into refraining from doing business with Movant [Plaintiff] regarding certain video tape of Mr. Steve Harvey, Respondent [Defendant], which is the subject matter of the above referenced suit, and from disparaging Movant [Plaintiff] or any of his employees, agents, assigns, companies or attorneys to any third parties.
Id. Plaintiff contends that Defendant violated this agreed temporary restraining order, but that Plaintiff elected not to inform the court of such violations. Id. at ¶ 28.
Plaintiff explains that he sought to obtain financial benefits from his rights under the Video Contract. Id. at ¶ 31. He avers that Defendant has accused him of threatening to distribute the videos in question, but that Plaintiff has in fact attempted to cooperate with Defendant, offering him the opportunity to purchase the videos. Id. Alternatively, if Defendant refused to purchase the videos, Plaintiff planned to distribute and sell them without Defendant’s involvement. Id.
Despite Plaintiffs purported attempt at cooperation, Defendant allegedly “embarked upon a concerted effort to prevent [Plaintiff] from using the videos produced under the Video Contract.” Id. at ¶ 32. Plaintiff recounts that he is uncertain why Defendant wished to prevent him from using the videos captured at the Steve Harvey Comedy Club, though he proceeds to speculate on possible reasons for Defendant’s behavior. Id. Undeterred by Defendant’s alleged efforts to prevent the release of the videos, Plaintiff sought to market, distribute, and sell the first volume of a five volume set entitled “Steve Harvey ‘Live, Raw & Uncensored’ ” in 2013. Id. at ¶ 33. Plaintiff contends that he was prepared to execute a licensing and distribution agreement (the “Licensing and Distribution Agreement”) with Music Video Distributors, Inc., which would grant Music Video Distributors, Inc. the rights to the videos and would award Plaintiff 75% of the videos’ sales price less manufacturing and marketing costs. Id. at ¶ 35. The proposed Licensing and Distribution Agreement allegedly provided that Plaintiff “is the owner of all right [sic], title and interest, free and clear of all judgments, claims and encumbrances” of “Steve Harvey ‘Live, Raw & Uncensored.’ ” Id. at ¶ 36. Plaintiff notes that he disclosed his previous litigation with Defendant to Music Video Distributors, Inc. Id.
In May 2014, following Plaintiffs negotiations regarding the Licensing and Distribution Agreement, Defendant’s attorney allegedly advised the attorney of Music Video Distributors, Inc. that Defendant had not agreed to give Plaintiff the rights to the videos he claimed to have, and that Defendant would “come after” Music Video Distributors, Inc. if it were to pursue the Licensing and Distribution Agreement. Id. at ¶ 37. Plaintiff insists that this statement is false and that Defendant and his attorney knew this statement to be false. Id. According to Plaintiff, Music Video Distributors, Inc. refused to enter into the Licensing and Distribution Agreement as a result of the statement made by Defendant’s attorney. Id. at ¶ 38. Plaintiff subsequently attempted to interest other distribution companies in the videos, but has not entered into an agreement as of the filing of the present lawsuit. Id. at ¶ 39.
Plaintiff asserts that he owns the video rights that he attempted to assign to distribution companies, and he complains that Defendant falsely claimed to retain some of these rights. Id. at ¶ 41. Plaintiff ex
Based on these alleged facts, Plaintiff brings the following claims against Defendant: (1) breach of contract; (2) tortious interference with business relations; and (3) copyright infringement. Id. at ¶¶ 49-57. He further requests that Defendant be enjoined from directly or indirectly infringing on his copyright to the videos created under the terms of the Video Contract. Id. at ¶ 60. Lastly, Plaintiff seeks a declaratory judgment establishing his and Defendant’s respective rights to the videos under the Video Contract. Id. at ¶ 62.
B. Procedural Background
Plaintiff brought this lawsuit against Defendant on November 21, 2014. See Compl. On January 26, 2015, Defendant filed the present Motion to Dismiss, or in the Alternative, Motion for a More Definite Statement (doc. 9), requesting that Plaintiffs claims for (1) breach of contract; (2) tortious interference with business relations; and (3) copyright infringement be dismissed, or, in the alternative, that they be supplemented by more detailed factual allegations. Plaintiff submitted his Response (doc. 11) on February 9, 2015, to which Defendant has not replied. As such, the Motion is now ripe for the Court’s review.
II.
LEGAL STANDARD
A. Rule 12(b)(6) Motion to Dismiss
Under Rule 8(a)(2) of the Federal Rules of Civil Procedure, a complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Rule 12(b)(6) authorizes the court to dismiss a plaintiffs complaint for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6)". In considering a Rule 12(b)(6) motion to dismiss, “[t]he court accepts all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff.” In re Katrina Canal Breaches Litig.,
B. Rule 12(e) Motion for a More Definite Statement
Rule 12(e) allows a party to “move for a more definite statement of a pleading to which a responsive pleading is allowed” when it is “so vague or ambigú
III.
ANALYSIS
Defendant seeks the dismissal of Plaintiffs claims, or, in the alternative, a more definite statement of the allegations supporting these claims. Doc. 9, Def.’s Mot. to Dismiss (“Def.’s Mot.”) 1. Specifically, Defendant contends that Plaintiff fails to provide sufficient factual allegations of his claims for: (1) breach of contract; (2) tortious interference with business relations; and (3) copyright infringement. Id. at 1-2. The Court addresses the parties’ respective arguments regarding each claim, in turn, below.
A. Breach of Contract
Plaintiffs breach of contract claim, as well as his entire lawsuit against Defendant, is anchored in the allegation that he owns rights to videos he recorded during Defendant’s stand-up comedy performances pursuant to an agreement the parties entered into on March 30, 1993 (the “Video Contract”). See Compl. ¶¶ 12-15. Plaintiff complains that comments made by Defendant’s attorney to Music Video Distributors, Inc. prevented him “from making full and free use of the videos created pursuant to the Video Contract,” which, according to his estimates, resulted in $5,000,000 in damages.. Id. at ¶¶54-55.
Defendant moves to dismiss Plaintiffs breach of contract claim, insisting that the Complaint lacks sufficient allegations to indicate the existence of a contract or its breach. Def.’s Mot. 4-6. Defendant acknowledges Plaintiffs assertion that the parties “entered into a written contract” and that Plaintiff “fully complied with his obligation under the Video Contract.” Id. at 4 (quoting Compl. ¶¶ 13, 17). Nevertheless, the claim is deficient, in Defendant’s view, due to the absence of facts regarding the acceptance of an offer, the parties’ consent to the terms of the agreement, the existence of consideration, and the execution and delivery of the contract. Id. at 5.
The elements of a claim for breach of contract under Texas law are: (1) the existence of a valid contract; (2) the plaintiffs performance or tendered performance; (3) the defendant’s breach of the contract; and (4) damages to the plaintiff resulting from the breach. Lewis v. Bank of Am. NA,
The Court therefore considers the sufficiency of the allegations supporting Plaintiffs claim that Defendant breached the March 30, 1993 Video Contract. Plaintiff asserts that he and Defendant entered into a valid written contract on March 30, 1993, (the “Video Contract”), pursuant to which Plaintiff was to produce video tapes of promotional material from Defendant’s Steve Harvey Comedy Club. Compl. ¶ 13. Plaintiff, in turn, was granted the “right to use the original tape and/or reproductions” for various uses. Id. (quoting Video Contract). Plaintiff avers that he fully complied with his obligations under the Video Contract, and that all conditions precedent to his recovery under the contract were satisfied. Id. at ¶ 17. According to Plaintiff, Defendant’s comment to Music Video Distributors, Inc., in which he questioned Plaintiffs ownership of the rights to the videos, “prevent[ed] [Plaintiff] from making full and free use of the videos created pursuant to the Video Contract” and thus constitutes a breach. Id. at ¶¶ 37, 54. This alleged breach relates to the following specific provision of the Video Contract, which Plaintiff includes in the general allegations of his Complaint:
3. The studio [Plaintiff] reserves the right to use the original tape and/or reproductions for display, publication or other purposes. Original videotapes remain the' exclusive property of the studio.
Id. at ¶ 14. Lastly, Plaintiff indicates that he suffered damages as a result of Defendant’s breach, as he alleges Defendant’s actions have prevented him from exercising the -rights conferred to him by the Video Contract. Id. at ¶ 55.
Based on these facts, the Court concludes that Plaintiff has offered sufficient allegations to support a claim for breach of contract, as he has asserted that: (1) a contract existed between him and Defendant; (2) Plaintiff performed all requirements under this contract; (3) Defendant breached specific terms of the contract; and (4) this breach caused Plaintiff to incur damages. See Tempur-Pedic Int’l Inc. v. Angel Beds LLC,
B. Tortious Interference with Business Relations
Defendant next urges the Court to dismiss Plaintiffs claim for tortious interference with business relations, under which Plaintiff alleges that Defendant intentionally and knowingly interfered with Plaintiffs business relations with Music Video
“The theory of tortious interference with business relations by a third person includes two causes of action: (1) tortious interference with existing contracts, and (2) tortious interference with prospective contractual relations.” Staton Holdings, Inc. v. Russell Athletic, Inc., No. 3:09-CV-0419-D,
The elements of a claim for tortious interference with prospective business relations under Texas law are: “(1) a reasonable probability that the plaintiff would have entered into a business relationship; (2) an independently tortious or unlawful act by the defendant that prevented the relationship from occurring; (3) the defendant did such act with a conscious desire to prevent the relationship from occurring or the defendant knew the interference was certain or substantially certain to occur as a result of the conduct; and (4) the plaintiff suffered actual harm or damages as a result of the defendant’s interference.” Mary Kay, Inc. v. Weber,
Defendant challenges the sufficiency of Plaintiffs allegations with respect to this claim, arguing that Plaintiff fails to demonstrate how Defendant interfered with Plaintiffs business relations. Def.’s Mot. 9. Defendant acknowledges Plaintiffs allegation that Defendant’s attorney made a false statement to Music Video Distributors, Inc., in which he claimed that Defendant never gave Plaintiff the video rights that were the focus of Plaintiffs proposed Licensing and Distribution Agreement. Id. However, he contends that these allegations fail to support a viable claim, as they are unclear and vague. Id. Defendant suggests that, “while ... Plaintiff claims ownership rights to the use of certain videotapes under color of contract, this alone does not entitle Plaintiff to rights in Defendant’s performance in its entirety.” Id. Defendant submits that he is a “well known celebrity with value to his name and likeness.” Id. Therefore, he argues, even if Plaintiff has the right to use the videos, Defendant reserves the right to protect these videos from use by third parties. Id.
In addition, Defendant insists that Plaintiff has neglected to provide facts indicating actual harm suffered as a result of the alleged interference. Id. at 10. Defendant argues that the $5,000,000 that Plaintiff seeks in damages is based on the alleged oral agreement that Defendant would purchase the videos for this sum in exchange for Plaintiff refraining from selling his rights to the videos. Id. Defendant
In response, Plaintiff reiterates that Defendant intentionally and knowingly interfered with his business relations with Music Video Distributors, Inc., as Defendant’s attorney interfered with the agreement Plaintiff and Music Video Distributors, Inc. were set to enter into. Pl.’s Resp. 11. Plaintiff clarifies that, as a result, he did not receive the income that was due pursuant to the contract. Id.
Despite Defendant’s arguments to the contrary, Plaintiff has indeed stated a viable claim for tortious interference with prospective business relations. He describes the proposed Licensing and Distribution Agreement between him and Music Video Distributors, Inc. relating to the distribution of the video recordings, thus alleging “a reasonable probability that [he] would have entered into a business relationship.” Compl. ¶ 36; see Mary Kay, Inc.,
Accordingly, the Court concludes that Plaintiff has stated a viable claim for tor-tious interference with prospective business relations and thus DENIES Defendant’s Motion with respect to this claim.
Finally, the Court considers Plaintiffs claim for copyright infringement, under which Plaintiff alleges that Defendant infringed his copyright to the videos produced pursuant to the Video Contract. Compl. ¶ 52. Defendant argues that Plaintiff fails to allege sufficient facts to support this claim and therefore urges the Court to dismiss it. Def.’s Mot. 7. Specifically, Defendant challenges Plaintiffs ownership of a valid copyright to the works in question, and he insists that Plaintiff fails to articulate what infringing acts have been committed. Id. at 8.
In his Response, Plaintiff clarifies that he possesses a copyright to the video recordings of Defendant’s comedy performances pursuant to the Video Contract, which provides that “[Plaintiff] reserves the right to use the original tape and/or reproductions for display, publication or other purposes. Original videotapes remain the exclusive property of the studio [Plaintiff].” Pl.’s Resp. 6 (quoting Video Contract). He elaborates that his copyright infringement claim is based on the statement Defendant’s attorney made to Music Video Distributors, Inc., which allegedly interfered with Plaintiffs exclusive distribution rights to the videos. Id. at 8-9. He thus specifies that Defendant violated 17 U.S.C. § 106(3), which provides that the owner of a copyright has the exclusive right “to distribute copies or pho-norecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending,” or to authorize such distribution. 17 U.S.C. § 106(3). With the aid of this clarification, the Court considers the viability of Plaintiffs claim that Defendant infringed his distribution rights. The Court first evaluates the allegation that an infringing act occurred, as this is the focus of the parties’ arguments.
Under the Copyright Act, the owner of a copyright has the exclusive right to, among other things, “distribute copies ... of the copyrighted work.” 17 U.S.C. § 106(3). The Act provides that “[a]nyone who violates any of the exclusive rights of the copyright owner as provided in sections 106 through 122 ... is an infringer of the copyright....” Id. § 501(a); Prostar v. Massachi,
Generally, the “infringement of [the distribution right] requires an actual dissemination of either copies or phonorecords.” Atl. Recording Corp. v. Howell,
In an attempt to argue that preventing the exercise of one’s right to distribute a work constitutes actionable copyright infringement, Plaintiff points to Diversey v. Schmidly,
CONCLUSION
For the reasons stated above, Defendant Broderick Steven “Steve” Harvey’s Motion to Dismiss, or in the Alternative, Motion for a Motion Definite Statement (doc. 9) is GRANTED in part and DENIED in part. Specifically, Defendant’s Motion to Dismiss is GRANTED with respect to Plaintiff Joseph Cooper’s claim for copyright infringement and is DENIED with respect to Plaintiffs claims for breach of contract and tortious interference with business relations.
Because the defects in Plaintiffs copyright infringement claim are incurable, the Court declines to afford Plaintiff the opportunity to replead so as to correct his pleading deficiencies. See Great Plains Trust Co. v. Morgan Stanley Dean Witter & Co.,
In light of the foregoing, the portion of Defendant’s Motion requesting a more definite statement of Plaintiffs claims pursuant to Federal Rule of Civil Procedure 12(e) is deemed MOOT.
SO ORDERED.
Notes
. The Court draws its factual account from the allegations contained in Plaintiff Joseph Cooper's Complaint (doc. 1) and from the attachments and documents incorporated therein by reference. Wolcott v. Sebelius,
. In addition, Defendant objects to this Court’s subject matter jurisdiction over the present lawsuit. Def.’s Mot. 6-7. Defendant argues that, because Plaintiff is unable to state a claim for copyright infringement, and because the remaining claims do not arise under the United States Constitution or federal laws, the Court lacks federal question jurisdiction under 28 U.S.C. § 1331. Despite the fact that Plaintiff’s copyright infringement claim must be dismissed, as discussed below, the Court nevertheless retains subject matter jurisdiction because this is a case involving parties of diverse citizenship. See 28 U.S.C. § 1332(a). As Plaintiff has indicated in his Complaint, he is a citizen of Texas, whereas Defendant is either a citizen of Illinois or Georgia. Compl. ¶¶ 3-4. Moreover, Plaintiff asserts that the amount in controversy exceeds $75,000, and he later claims damages in the amount of $5,000,000. Id. at ¶¶ 4, 61. Because Defendant does not challenge these assertions, the Court concludes that the requirements of 28 U.S.C. § 1332(a) have been satisfied, thus allowing the exercise of diversity jurisdiction.
. Elsewhere in the Complaint, Plaintiff asserts that, in October 1998, he and Defendant orally agreed that Defendant would purchase the videos in question for the sum of $5,000,000, but that Defendant breached this agreement. Compl. ¶ 26.
. In his Response, Plaintiff adds that his allegations also contain facts supporting a claim for business disparagement and accordingly seeks leave of Court to amend his Complaint so as to include such a cause of action. Pl.’s Resp. 11. As this request is not presented in proper motion form, does not contain the requisite context, and is not accompanied by Defendant’s response, the Court is unable to address it in deciding the present Motion to Dismiss. If Plaintiff wishes to amend his pleadings, he must file the appropriate motion seeking leave to do so.
. The present case does not relate to distribution in the context of online file-sharing. However, for illustrative purposes, the Court observes that disagreement exists as to whether actual distribution must be shown to prove infringement claims in such situations, or whether “making available” copies of a work can constitute copyright infringement. Compare Atl. Recording Corp.,
. Although Plaintiff insists that he owns a copyright in the videos in question, Defendant raises a brief argument questioning the existence of such copyright. Def.’s Mot. 8. The Copyright Act provides that "no action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made...17 U.S.C. § 411(a). The Fifth Circuit has held that "registration with the copyright office is a jurisdictional prerequisite to filing a copyright infringement suit." Creations Unlimited, Inc. v. McCain,
Here, Plaintiff has neglected to even allege that he has registered — or even attempted to register — a copyright in the videos. He further appears to concede his lack of copyright registration. See PL’s Resp. 9. Although Plaintiff assumes that the Video Contract grants him a valid copyright in the videos, such a conclusion is insufficient to satisfy this element of a claim for copyright infringement. Because the Court has already concluded that Plaintiff's copyright infringement claim must be dismissed due to Plaintiff's inability to allege any actionable infringement on behalf of Defendant, it need not decide whether Plaintiff's failure to register a copyright warrants dismissal on jurisdictional or nonjurisdictional grounds.